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THE 


LAWYER'S  OFFICIAL  OATH 


AND   OFFICE 


BY 

JOSIAH  HENRY  BENTON,  LL.D. 


BOSTON 

The     Boston     Book     Company 

1909 


Copyright,  1909, 
By  J.   H.  BENTON. 


THE    ROCKWELL    AND    CHURCHILL     PRESS 


THE    LAWYER'S    OFFICIAL    OATH 
AND    OFFICE. 


By   JOSIAH    HENRY    BENTON,    LL.D. 


Most  of  what  is  contained  in  this  book  was  gathered  by 
me  in  the  preparation  of  an  address  deHvered  before  the 
Albany  Law  School  in  the  Hubbard  course  of  Legal  Ethics, 
May  17,  1909.  It  has  been  suggested  that  its  presentation 
in  this  form  will  be  useful  to  the  profession,  as  some  of  it 
is  not  otherwise  easily  accessible  to  all  who  are  interested  in 
the  subject  of  the  lawyer's  oath  and  office. 

This,  as  well  as  my  own  belief  that  the  dignity  and  impor- 
tance of  the  lawyer's  office  and  of  the  duties  imposed  by  his 
official  oath  should  be  more  fully  understood,  have  caused 
me  to   print  this  little  book. 

Why  is  any  oath  required  for  admission  to  the  practice 
of  the  law?  No  oath  is  required  by  law  for  admission  to 
practise  in  any  other  profession,  even  where  qualifications  to 
practise  are  prescribed  or  ascertained  by  examinations 
required  by  law,  as  in  the  case  of  physicians.  But  an 
official  oath  has  always  been  required  for  admission  to  the 
practice  of  the  law.  Why  is  it  required?  What  is  its 
significance  and  what  obligation  does  it  impose? 

The  significance  of  the  lawyer's  oath  is  that  it  stamps  the 


lawyer  as  an  officer  of  the  State,  with  rights,  powers  and 
duties  as  important  as  those  of  the  Judges  of  the  Courts 
themselves.  When  a  lawyer  is  admitted  to  practise  and 
takes  the  required  oath  of  office  he  has  as  much  right  to 
discharge  the  duties  of  his  office  as  a  representative  or 
senator  has  to  sit  and  act  in  the  Legislature,  or  a  Governor 
to  exercise  the  functions  of  a  chief  magistrate.  He  has  as 
much  right  to  appear  in  Court  and  be  heard  for  a  party  to 
a  cause  as  a  Judge  has  to  hear  and  decide  the  cause.  A 
lawyer  is  not  the  scrvajit  oj  his  client.  He  is  not  the  servant 
of  the  Court.  He  is  an  officer  of  the  Court,  with  all  the 
rights  and  responsibilities  which  the  character  of  his  office 
gives  and  imposes. 

He  is  also  an  officer  for  life  whose  office  cannot  be  taken 
from  him  except  for  cause  established  by  due  process  of  law 
upon  proof,  hearing  and  judicial  determination. 

This  was  settled  upon  great  consideration  by  the  United 
States  Supreme  Court  in  the  noted  case  of  Ex  parte  Garland 
(4  Wallace,  333).  In  1865  Congress  passed  an  act  pro- 
viding that  no  person  should  thereafter  be  admitted  to  the 
Bar  of  tne  Supreme  Court  of  the  United  States,  or  any  other 
Federal  Court,  unless  he  should  first  have  taken  and  sub- 
scribed an  oath  to  the  effect  that  he  had  "  never  voluntarily 
borne  arms  against  the  United  States,  or  voluntarily  given 
aid,  countenance,  counsel  or  encouragement,  to  persons 
engaged  in  armed  hostility  thereto,  or  attempted  to  exercise 
the  functions  of  any  office  under  any  authority  or  pretended 
authority  in  hostility  to  the  United  States,"  and  the  rule  of 
the  Supreme  Court  as  to  the  admission  of  attorneys  was 
changed  in  that  year  by  the  addition  of  a  clause  requiring  an 
oath  in  conformity  with  this  act  of  Congress. 


5 

The  question  as  to  the  vaHdity  of  this  statute  and  change 
in  the  rule  of  Court  was  raised  by  Mr.  Garland,  who  had 
been  admitted  to  practise  under  the  original  rule  of  Court  in 
i860,  and  had  thereafter  been  a  member  of  the  Confederate 
Congress,  but  had  been  pardoned  by  the  President  in  July, 
1865.  Of  course,  he  could  not  take  the  oath  required  by  the 
amended  rule,  and  the  effect  was  that  the  act  of  Congress 
and  the  rule  enforcing  the  same  prevented  him  from  ever 
being  an  attorney  in  any  Federal  Court,  i.e.,  deprived  him  of 
his  office  as  an  attorney. 

The  Supreme  Court  held  that  the  office  of  an  attorney 
was  not  an  office  created  by  Congress,  and  depending 
upon  Congress  for  its  continuance,  but  that  an  attorney 
was  an  officer  of  the  Court,  holding  his  office  during  good 
behavior,  and  could  only  be  deprived  of  it  for  misconduct, 
ascertained  and  declared  by  the  judgment  of  the  Court  after 
opportunity  to  be  heard  had  been  afforded.  It  was  also  held 
that  the  admission  or  exclusion  of  attorneys  was  the  exercise 
of  judicial  power,  and  that  "  the  attorney  being  by  the  solemn 
judicial  act  of  the  Court  clothed  with  his  office,  does  not  hold 
it  as  a  matter  of  grace  and  favour.  The  right  which  it  con- 
fers is  not  revocable  at  the  pleasure  of  the  Court,  or  at  the 
command  of  the  legislature.  It  is  a  right  of  which  he  can 
only  be  deprived  by  the  judgment  of  the  Court  for  moral  or 
professional  delinquency."  * 

Speaking  of  this  subject  in  a  leading  case,  f  where  an  act 
of  the  Legislature  was  held  unconstitutional  because  it  com- 

*As  the  result  of  this  decision  the  Court,  by  the  same  opinion  in  which  it  was 
rendered,  rescinded  the  amendment  of  the  rule  requiring  an  additional  oath  ot  admis- 
sion as  an  attorney.  And  the  rule  was  thus  restored  to  its  original  form,  in  which  it 
now  exists  (210  U.S.,  page  472). 

tSplain's  Petition,  123  Penn.  St.  527. 


manded  the  Court  to  admit  persons  whether  found  to  be  fit 
or  not,  Paxson,  C.J.,  said: 

"  No  judge  is  bound  to  admit,  nor  can  be  compelled 
to  admit,  a  person  to  practise  law  who  is  not  properly 
qualified,  or  whose  moral  character  is  bad.  The  pro- 
fession of  the  law  is  one  of  the  highest  and  noblest 
in  the  world.  The  relation  between  attorney  and  client 
is  a  very  close  one,  and  often  involves  matters  of  great 
delicacy.  The  attorney  is  an  officer  of  the  court,  and  is 
brought  into  close  and  intimate  relations  with  the  court. 
Whether  he  shall  be  admitted  or  whether  he  shall  be 
disbarred   is  a  judicial  and  not  a  legislative  question." 

One  of  the  greatest  lawyers  the  United  States  has  pro- 
duced, Justice  Miller  of  the  Supreme  Court,  spoke  of  the 
lawyer's  office  in  these  words : 

"The  lawyer  in  this  country  is  one  of  the  adminis- 
trators of  justice.  The  judge  who  presides  in  the  court 
is  another,  with  more  authority  of  position,  and,  perhaps, 
in  some  respects  a  more  burdensome  one.  But  the 
court,  and  the  clerk,  and  the  marshal,  the  sheriff,  the 
jury,  the  lawyer,  all  constitute  ministers  of  justice  ;  and 
a  lawyer  who  consciously  undertakes  to  thwart  justice  is 
unfit  for  the  position,  as  much  as  the  judge  who  accepts 
a  bribe,  or  knowingly  decides  a  case  against  the  law  and 
the  right;  and  it  should  be  understood  that  they  are 
subjected  to  the  same  responsibilities.  They  have  a 
duty,  undoubtedly,  to  their  clients;  but  this  is  not  the 
first  duty,  as  is  generally  supposed.     Their  first  duty  is 


the    administration    of  justice,  and  their  duty  to  their 
cHent  is  subordinate  to  that."  * 

In  the  discharge  of  the  duties  of  his  office  the  lawyer 
exercises  large  powers  and  has  corresponding  responsibili- 
ties. He  may  bind  his  client  by  agreements  and  by  conduct 
of  which  the  client  knows  nothing,  if  they  are  within  the 
scope  of  his  duties  as  a  lawyer  in  respect  to  a  matter  con- 
fided to  him  by  the  client.  He  may  institute  suits  and 
cause  acts  to  be  done  in  them  for  which  his  client  may  be 
held  responsible  although  entirely  ignorant  of  them  when 
done.  He  may  bind  his  clients  by  written  agreements  out  of 
Court  or  by  oral  agreements  in  open  Court.  He  may  dis- 
miss his  client's  case  or  consent  to  a  judgment  against  him, 
and  the  client  is  bound  by  his  action. 

His  right  to  appear  for  his  client  can  only  be  questioned 
by  the  client.  His  adversary  cannot  force  him  to  prove  his 
right  to  appear  for  his  client,  nor  will  the  Court  do  so  except 
for  special  and  peculiar  cause.  As  a  rule  his  statements  of 
fact,  unless  disputed,  are  accepted  and  acted  upon  by  the 
Court  as  true.  Countless  judicial  acts,  many  of  them  impor- 
tant, are  daily  done  by  the  Courts  upon  unsupported  state- 
ments of  fact  by  lawyers,  and  in  my  judgment  the  business 
of  the  Courts  could  be  done  in  no  other  way.  Time  would 
not  permit  proof  by  writing  or  by  witness  of  every  fact  upon 
which  the  Courts  must  act.  They  must  be  able  to  rely  upon 
counsel,  and  they  do  so,  because  the  lawyer  is  acting  as  an 
officer  of  the  Court  under  the  sanction  and  responsibilities  of 
an  official  oath. 

A  great  English    Judge,  Lord    Langdale,  in  a    ruling  by 

*  In  re  Thomas,  36  Fed.  Rep.  243. 


8 

which  he  required  counsel  to  aid  him  with  their  opinions  as 
to  the  character  of  a  certain  class  of  cases,  stated  the  duty 
of  lawyers  and  their  relation  to  the  administration  of  justice 
in  language  so  apt,  and  also  so  appreciative  of  the  services 
of  lawyers,  that  I  quote  it.      He  said  : 

"  With  respect  to  the  task,  which  I  may  be  considered 
to  have  imposed  upon  counsel,  I  wish  to  observe  that  it 
arises  from  the  confidence  which  long  experience 
induces  me  to  repose  in  them,  and  from  a  sense  which 
I  entertain  of  the  truly  honourable  and  important  ser- 
vices which  they  constantly  perform  as  ministers  of 
justice,  acting  in  aid  of  the  Judge  before  whom  they 
practise.  No  counsel  supposes  himself  to  be  the  mere 
advocate  or  agent  of  his  client,  to  gain  a  victory,  if  he 
can,  on  a  particular  occasion.  The  zeal  and  the 
arguments  of  every  counsel,  knowing  what  is  due  to 
himself  and  his  honourable  profession,  are  qualified  not 
only  by  considerations  affecting  his  own  character  as  a 
man  of  honour,  experience,  and  learning,  but  also  by 
considerations  affecting  the  general  interests  of  justice."  * 

A  lawyer  as  an  officer  of  the  Court  is  also  privileged  from 
arrest  upon  civil  process  while  engaged  in  the  performance 
of  his  duties. f 

A  lawyer  is  also  privileged  as  to  the  language  honestly 
and  pertinently  used  by  him  in  the  pleadings  or  in  the  con- 
duct of  a  case  in  Court,  subject  only  to  the  limitation  that 
he  shall  not  use  the  language  "to  gratify  private  malice  by 
uttering  slanderous  expressions,  either  against  a  party,  wit- 


*  Hutchinson  v.  Stephens,  i  Keen's  Reports,  659  at  668. 
t/«  re  Jewitt,  33  Bevan,  559. 


ness  or  third  person,  which  have  no  relation  to  the  cause  or 
subject  matter  of  the  inquiry."  * 

It  is  therefore  of  the  highest  importance  that  the  lawyer's 
oath  should  not  only  be  uniform  in  all  our  Courts,  but  that 
it  should  be  so  framed  as  to  indicate  the  duties  and  re- 
sponsibilities of  those  who  take  it.  In  short,  the  lawyer's 
oath  should  be  a  condensed  code  of  legal  ethics.  And 
this  is  what  it  was  in  England  and  in  America  from  the 
beginning  until  by  a  reaction  against  the  multiplicity  of  oaths 
imposed  by  law  and  of  oaths  taken  without  warrant  of 
law,  the  lawyer's  oath  was  so  changed  in  form  as  to  be 
now  in  most  of  the  State  Courts  and  in  all  the  Federal 
Courts  only  a  mere  obligation  to  discharge  faithfully  the 
duties  of  the  office  of  an  attorney. 

How  far  the  adoption  of  codes  and  canons  of  legal  ethics 
will  be  of  permanent  benefit  may  well  be  questioned,  but  if 
the  work  which  has  been  done,  and  is  being  done,  in  that 
direction  by  the  public-spirited  members  of  the  profession 
who  have  it  in  charge  results  in  restoring  in  all  our  Courts  the 
official  lawyer's  oath  of  the  English-speaking  people  in  the 
olden  time,  which  is  now  used  in  some  States,  it  will  be  of 
permanent  benefit  to  the  profession  and  the  people. 

When  was  that  oath  framed  and  what  was  it?  It  was 
doubtless  framed  when  the  order  of  the  English  Bar  was 
established,  and  lawyers  were  called  pleaders,  sergeants- 
at-law  and  attorneys.  The  order  of  the  profession  of  the 
law  exists  by  the  right  of  an  earlier  creation  than  that 
of  the  oldest  English  peerage,  and  its  history  can  be  traced 
for  more  than    eight  hundred   years.     It  was  a  part   of  the 

*Hoari'.  Wood, 3  Metcalf  (Mass.),  197;  Mackay  v.  Ford,  5  H.&  N.  792;  Ruohs  v. 
Backer,  6  Heisk  (Tenn.),  406. 


10 

administration  of  the  government  of  the  realm  before  [the 
Hail  of  William  Rufus  lifted  its  arches  to  the  English  sky, 
and  for  more  than  three  centuries  before  Columbus  swept 
the  veil  from  the  face  of  the  new  world.* 

When,  in  the  reign  of  Edward  I.  (A.D.  1272-1307), — 
the  English  Justinian,  —  English  history  ceased  to  be  the 
"  domain  of  antiquarians,"  and  became  "  the  domain^  of 
lawyers,"  f  lawyers  were  recognized  as  an  existing  order, 
and  their  conduct  regulated  by  the  famous  Statute,  Primer 
Westminster,  A.D.  1275.  This  statute,  which  Coke  says 
was  the  first  English  statute  passed  by  a  lawful  Parliament 
consisting  of  the  Commons,  the  Lords  spiritual  and  temporal, 
and  the  King,  provided  that: 

"  If  any  serjeant,  pleader,  or  other,  do  any  manner  of 
deceit  or  collusion  in  the  king's  court,  or  consent  unto 
it,  in  deceit  of  the  court,  or  to  beguile  the  court,  or  the 
party,  and  thereof  be  attainted,  he  shall  be  imprisoned 
for  a  yeare  and  a  day,  and  from  thenceforth  shall  not  be 
heard  to  plead  in  that  court  for  any  man  ;  and  if  he  be 
no  pleader,  he  shall  be  imprisoned  in  like  manner  by  the 
space  of  a  year  and  a  day  at  least;  and  if  the  trespass 
require  greater  punishment,  it  shall  be  at  the  king's 
pleasure." 

The  commentary  of  Coke  upon  this  statute  shows  what 
the  oath  of  the  serjeant-at-law  was.     He  says  : 

"  For    the    better    understanding    of    this    act,    it    is 

*The  Order  of  the  Garter  was  established  in  1330,  the  first  Marquis  was  created  in 
1385,  the  first  Duke  was  created  in  1388,  the  Order  of  the  Bath  was  established  in 
1399,  and  the  rank  of  Viscount  was  first  used  in  1440. 

t  Freeman's  "Growth  of  the  English  Constitution,"  Chapter  II. 


II 


necessary  to  set  downe  the  oath  of  the  serjeaunt  at 
law. 

"  This  oath  consisteth  on  foure  parts. 

"  I.  That  he  shall  well  and  truly  serve  the  kings 
people,  as  one  of  the  serjeaunts  of  the  law. 

"  2.  That  he  shall  truly  counsell  them,  that  he  shall 
be  retained  with,  after  his  cunning. 

"  3.  That  he  shall  not  defer,  tract,  or  delay  their 
causes  willingly,  for  covetousnesse  of  money,  or  other 
thing  that  may  tend  to  his  profit. 

"  4.     That  he  shall  give  due  attendance  accordingly." 

Then  speaking  of  the  oath  of  the  King's  sergeant-at-law 
he  says  : 

"  This  oath  consisteth  on  six  parts. 

"  I.  That  he  shall  well  and  truly  serve  the  king  and 
his  people,  as  one  of  the  kings  serjeaunts  at  law. 

"  2.  That  he  shall  truly  counsell  the  king  in  his 
matters  when  hee  shall  be  called. 

"  3.  And  duely  and  truly  minister  the  kings  matters 
after  the  course  of  the  law,  to  his  cunning. 

"  4.  He  shall  take  no  wages  or  fee  of  any  man  for 
any  matters,  where  the  king  is  party,  against  the  king. 

"  5.  He  shall  as  duly,  as  hastily  speed  such  mat- 
ters, as  any  man  shall  have  to  do  against  the  king  in  the 
law,  as  he  may  lawfully  doe,  without  delay,  or  tarrying 
the  party  of  his  lawful  proces  in  that  belongeth  to  him. 

"  6.  He  shall  be  attendant  to  the  kings  matters 
when  hee  shall  be  called  thereto."  * 

A  chapter  is  given  to  a  statement  of  the  duties  of  Eng- 

*  Coke's  Second  Institute  (Ed.  1817),  pages  212-214. 


12 

lish    lawyers    in    that    curious    manuscript    written    probably 
about  A.D.  1285  called  "The  Mirror  of  Justices  "  as  follows: 

"  Chap.  V.  of  Pleaders. 
"  Some  there  be  who  know  not  how  to  state  their  causes 
or  to  defend  them  in  court,  and  some  who  cannot,  and  there- 
fore are  pleaders  necessary;  so  that  what  plaintiffs  and 
others  cannot  or  know  not  how  to  do  by  themselves  they 
may  do  by  their  Serjeants,  proctors,  or  friends.  Pleaders 
are  Serjeants  wise  in  the  law  of  the  realm  who  serve  the  com- 
monalty of  the  people,  stating  and  defending  for  hire  actions 
in  court  for  those  who  have  need  of  them.  Every  pleader 
who  acts  in  the  business  of  another  should  have  regard  to 
four  things :  First,  that  he  be  a  person  receivable  in  court, 
that  he  be  no  heretic,  nor  excommunicate,  nor  criminal,  nor 
man  of  religion,  nor  woman,  nor  ordained  clerk  above  the 
order  of  subdeacon,  nor  beneficed  clerk  with  the  cure  of 
souls,  nor  infant  under  twenty-one  years  of  age,  nor  judge 
in  the  same  cause,  nor  open  leper,  nor  man  attained  of  falsi- 
fication against  the  law  of  his  office.  Secondly,  that  every 
pleader  is  bound  by  oath  that  he  will  not  knowingly  main- 
tain or  defend  wrong  or  falsehood,  but  will  abandon  his  client 
immediately  that  he  perceives  his  wrongdoing.  Thirdly, 
that  he  will  never  have  recourse  to  false  delays  or  false  wit- 
nesses, and  never  allege,  proffer,  or  consent  to  any  corrup- 
tion, deceit,  lie,  or  falsified  law,  but  loyally  will  maintain  the 
right  of  his  client,  so  that  he  may  not  fail  through  his  folly, 
or  negligence,  nor  by  default  of  him,  nor  by  default  of  any 
argument  that  he  could  urge  ;  and  that  he  will  not  by  blow 
contumely,  browl,  threat,  noise,  or  villian  conduct  distub 
any  judge,   party,  serjeant,   or   other  in   court,    nor    impede 


13 

the  hearing  or  the  course  of  justice.  Fourthly,  there  is  the 
salary,  concerning  which  four  points  must  be  regarded  —  the 
amount  of  the  matter  in  dispute,  the  labour  of  the  serjeant, 
his  value  as  a  pleader  in  respect  of  his  (learning),  eloquence, 
and  repute,  and  lastly  the  usage  of  the  Court.  A  pleader  is 
to  be  suspended  if  he  is  attainted  of  receiving  a  fee  from  both 
sides  in  one  cause,  or  if  he  says  or  does  anything  in  contempt 
of  the  judge,  or  if  he  fails  in  any  of  the  points  above  men- 
tioned concerning  the  exceptions  which  may  be  taken  to 
the  person  of  the  pleader,  for  none  may  be  a  pleader  who 
cannot  be  an  accuser  or  plaintiff."  * 

This  statement  of  the  duties  of  lawyers  in  England  cor- 
responds somewhat  to  the  statement  of  their  duties  in  Nor- 
mandy, found  in  Chapter  64,  Grand  Coutumier  de  Normandie, 
and  makes  it  probable  that  the  requirements  of  the  English 
law  in  this  matter  were  based  upon  those  of  the  Norman  law, 
for  after  the  Conquest  the  laws  and  customs  of  Normandy 
entered  into  and  modified  those  of  England,  as  English  laws 
and  customs  reciprocally  modified  those  of  Normandy. f 

The  lawyer's  office  was  well  established,  however,  in  Eng- 
land and  in  France  long  before  this  time. 

When  in  the  year  707  the  French  Parliament  ceased  to  be  a 
purely  political  body  and  assumed  certain  judicial  functions, 
it  became  ambulatory  and  followed  the  King,  holding  sittings 
wherever  the  King  from  time'to  time  resided.  Certain  advo- 
cates attended  it  at  these  sittings,  and  were  recognized  as 
lawyers,  and  entitled  to  practise  in  the  Parliament.  The 
body  of  laws  made  in  802,  called  the  Capitularies  of  Charle- 
magne,   recognized    the    profession  of  the    lawyer  and  pro- 

*"The  Mirror  of  Justices,"  Selden  Edition,  1895,  pages  47-8. 
tSee  Hale's  History  of  the  Common  Law  of  England,  Chap.  6. 


14 

vidcd  "  that  nobody  should  be  admitted  therein  but  men, 
mild,  pacific,  fearing  God,  and  loving  justice,  upon  pain  of 
elimination." 

But   by  an  ordinance  of   February    13,  1327,  Philippe   de 
Valois,  then  Regent,  provided  that 

"  No  advocate  shall  be  permitted  to  plead  if  he  has 
not  taken  the  oath,  and  if  he  be  not  inscribed  on  the 
roll  of  advocates." 

In  1344,  further  regulations  were  made  by  the   Parliament 
of  Paris,  providing  that 

"Those  advocates  who  are  retained  shall  not  be 
allowed  to  continue  their  practice  unless  they  bind 
themselves  by  oath  to  the  following  effect :  to  fulfil  their 
duties  with  fidelity  and  exactitude  ;  not  to  take  charge 
of  any  causes  which  they  know  to  be  unjust;  that  they 
will  abstain  from  false  citations;  that  they  will  not  seek 
to  procure  a  postponement  of  their  causes  by  subter- 
fuge, or  malicious  pretexts ;  that  whatever  may  be  the 
importance  of  a  cause,  they  will  not  receive  more  than 
thirty  livres  for  their  fee,  or  any  other  kind  of  gratuity 
over  and  above  that  sum,  with  liberty,  however,  to  take 
less ;  that  they  will  lower  their  fees  according  to  the 
importance  of  the  cause  and  the  circumstances  of  the 
parties  ;  and  that  they  will  make  no  treaty  or  arrange- 
ment with  their  clients  depending  on  the  event  of  the 
trial."  * 

Among  the  decrees  promulgated  at  a  Council  at  St.  Paul's, 

*A  History  of  the  French  Bar,  Ancient  and  Modern,  by  Robert  Jones,  pages  loo,  103. 


15 

London,  in  1237,  by  Cardinal  Otto,  Legate  of  Pope  Gregory 
Ninth,  who  had  been  summoned  to  England  by  Henry  Third, 
was  one  as  to  the  oath  to  be  taken   by  advocates,  as  follows : 

"  We,  therefore,  rising  to  the  assistance  of  justice,  do, 
with  the  approbation  of  the  council,  decree,  that  who- 
ever wishes  to  obtain  the  office  of  advocate  shall  make 
oath  to  the  diocesan  in  whose  jurisdiction  he  lives,  that 
in  cases  in  which  he  may  plead,  he  will  plead  faithfully, 
not  to  delay  justice  or  to  deprive  the  other  party  of  it; 
but  to  defend  his  client  both  according  to  law  and 
reason.  Otherwise,  they  shall  not  be  admitted  to  plead, 
in  matrimonial  cases  and  elections,  unless  they  make  a 
like  oath;  and  they  shall  not  be  admitted  in  other  cases 
before  the  ecclesiastical  judge  for  more  than  three 
terms,  without  an  oath  of  this  kind,  unless  by  chance  a 
demand  is  to  be  made  on  behalf  of  this  church,  or  his 
lord,  or  for  a  friend,  or  for  a  poor  man,  a  foreigner,  or 
any  wretched  person.  Let  all  advocates  beware  that 
they  do  not  themselves,  or  by  means  of  others,  suborn 
witnesses,  or  instruct  the  parties  to  give  false  evidence, 
or  to  suppress  the  truth  :  those  who  do  so  shall  be,  ipso 
facto,  suspended  from  office  and  benefice,  until  they 
have  made  proper  atonement  for  the  same  ;  and  if  they 
are  convicted  of  so  doing,  they  shall  be  duly  punished, 
all  other  matters  notwithstanding.  Judges,  too,  who  are 
ignorant  of  the  law,  should,  if  any  doubtful  point  arise, 
from  which  injury  may  accrue  to  either  party,  ask  the 
advice  of  some  wise  person,  at  the  expense  of  both 
parties."* 

*  Matthew  of  Paris,  Eng.  Hist.,  Vol.  I.,  page  91  (Bohn,  1852). 


i6 


An  ordinance  of  Philip  the  Bold,  of  France,  concerning 
the  functions  and  fees  of  attorneys,  given  October  23,  1274, 
provided  as  follows : 

"  Philip,  by  the  grace  of  God,  king  of  the  PVanks,  to  the 
seneschal  of  Carcassonne.*     Greeting  : 

"  Inasmuch  as  we  are  zealously  guarding  the  interests  and 
welfare  of  our  subjects,  so  that  before  you  and  in  the  courts 
of  bailiffs,  seneschals,  prefects  and  other  judges,  that  is,  our 
representatives,  they  may  obtain  each  one  his  lawful  right  in 
cases  at  law  and  transactions  more  easily  and  freely;  and, 
furthermore,  inasmuch  as  we  propose  to  deter  those  who  in 
the  matter  of  cases  at  law  and  judicial  transactions  offer  their 
professional  services,  from  maliciously  protracting  legal 
contests  or  charging  immoderate  fees,  Therefore: 

"(i.)  We  have  it  ordained  and  made  a  statute  that  all 
and  each  one  exercising  the  functions  of  attorney  either  in 
your  court  or  in  that  of  bailiffs  and  our  aforementioned 
officials,  that  is,  in  the  courts  of  judges,  shall  swear  upon  the 
Sacred  Gospels  the  oath,  viz.  :  That  in  all  cases  which  are 
being  tried  in  said  courts  before  which  they  have  practised  in 
the  past  or  shall  practise,  they  will  perform  their  duties  bona 
fide  diligently  and  faithfully  as  long  as  they  have  reason  to 
believe  their  case  to  be  just.  They  shall  not  bring  any  case 
into  said  courts  either  as  defending  or  counselling  lawyers 
unless  they  shall  have  believed  it  to  be  just;  and,  if  at  any 
stage  of  the  trial  the  case  appears  to  them  unjust,  or  even 
intrinsically  bad,  they  shall  discontinue  to  further  defend  it, 
withdrawing  from  said  case  entirely  as  defending  or  counsel- 

*  Carcassonne,  in  the  department  of  Aude,  was  one  of  the  oldest  fortified  cities  in 
Central  France.    Philip  the  Bold  made  it  the  capital  of  Central  France. 


17 

ling  lawyers.  Whosoever  declines  to  swear  in  accordance 
with  this  formula,  shall  take  cognizance,  that  in  said  courts 
they  are  disbarred,  as  long  as  they  persist  in  this  state  of 
mind. 

"  (2.)  Now,  concerning  the  fee  of  attorneys,  we  have  held 
it  a  statute  that  fees  should  be  received  in  accordance  with 
the  importance  of  the  case  and  the  merits  of  the  attorney; 
and  this  for  each  case  that  is  being  argued.  But  for  an 
entire  case  argued  either  before  our  tribunal  or  yours,  or 
that  of  any  of  our  aforesaid  justiciaries,  the  fee  of  one 
attorney  shall  not  exceed  the  amount  of  30  francs.* 

"  (3.)  The  attorneys  shall  swear  also  that  neither  under 
the  guise  of  pension  or  stipend  or  present  or  favor,  nor 
under  any  kind  of  pretext  of  their  own,  nor  by  device  of 
others;  nor  by  any  scheme  of  whatever  color  planned  in  the 
past  or  being  planned  even  without  fraudulent  intent,  they 
shall  acquire  any  amount  beyond  the  one  stated  afore 
Whosoever  undertakes  to  break  the  orders  and  statutes  as 
laid  down,  and  thus  violates  the  oath  that  has  been  sworn  to, 
this  same  attorney,  his  case  having  been  proven  in  the  afore- 
said courts,  shall  be  branded  with  the  stigma  of  perjury  and 
infamy,  without  looking  for  any  specific  sentence  upon  him; 
and  he  shall  be,  hereafter  and  forever,  disbarred  from  exer- 
cising the  functions  of  an  attorney;  unless  it  seems  best  to 
us  or  to  the  others  of  our  judges  in  whose  courts  he  have 
been  found  guilty,  to  punish  him  in  some  other  way. 

"  (4.)  We  have  ordained  also,  that  aforesaid  oath  shall  be 
renewed    by  all  attorneys  every  single  year;    and    this    our 

*  "  Thirty  francs."  The  Latin  says  :  Summam  triginta  librarum  turonensium,  the 
sum  of  30  turonensian  pounds ;  a  piece  of  money,  first  coined  at  St.  Martin's  Abbey 
in  Tours,  France.  During  the  eleventh  century  it  became  the  royal  coin,  supplanting 
almost  wholly  the  Parisian  franc.  In  value  it  exceeded  somewhat  a  modern  franc- 
piece. 


i8 


order  we  command  to  be  published  by  our  bailiffs,  sene- 
schals, and  our  other  justiciaries  in  their  assisses  three  times 
each  year. 

"  To  you  we  command  strict  enforcement,  and  to  sec  that 
this  our  statute  be  faithfully  observed  by  those  under  your 
authority;  also,  that  it  be  published  in  the  assisses  and  courts 
as  soon  as  they  convene  with  you,  and  to  have  this  publica- 
tion repeated  everywhere  three  times  each  year. 

"  Transgressors  of  it  you  will  punish  in  accordance  with  the 
form  prescribed  before. 

"Acted,  in  Paris,  on  the  day  of  March,  preceding  the  feast 
of  the  Saint  Apostles,  Simon  and  Jude,  in  the  year  of  Our 
Lord  1274."  * 

The  official  character  and  duties  of  lawyers  were  recog- 
nized and  enforced  by  an  edict  of  Francis  L,  1536,  on  the 
administration  of  justice  in  the  Bretagne,  and  on  the  shorten- 
ing of  trials,  as  follows: 

Chap.  I.,  Article  37 :  That  "  advocates  must  not  give 
advice  to  both  parties  under  punishment  of  being  heavily 
fined  by  financial  penalties,  suspension  or  loss  of  all  their 
property." 

Also  in  Chap.  I.,  Article  39 :  That  "  if  there  should  happen 
some  poor  and  wretched  people,  who  on  account  of  their 
poverty  or  because  of  the  sway  and  fear  of  their  parties  (z.e., 
opponents),  cannot  obtain  counsel,  we  enjoin  the  judges  to 
provide  counsel  for  them,  and  to  punish  and  fine  the  attor- 
neys   {advocats^   and   barristers    {procoiireurs)    who   without 


*  Recueil  generale  des  anciennes  lois  fran9aises  depuis  I'an  420Jusqu'a  la  revolution 
de  1789;  Paris,  Tome  II.  (1270-1308),  pages  652-654,  No.  247. 


19 

reasonable  ground,  should  have  refused  to  take  charge  of 
them."  *  t 

This  was  only  following  the  laws  and  customs  of  all 
European  nations  in  the  Middle  Ages  and  also  those  of  the 
Roman  Empire.  The  man  of  law  who  advised  and  spoke 
for  others  for  hire  had  recognized  and  regulated  rights  and 
duties  under  the  sanction  of  an  official  engagement  or  prom- 
issory oath.  In  Rome  when  the  advocatus  was  called  upon 
by  the  Praetor  to  aid  a  client  in  a  cause,  he  was  solemnly 
exhorted  "  to  avoid  artifice  and  circumlocution."  "  Aderant 
in  judicio  advocati,  qui  causas  litigantium  nudo  simpliciqye 
oratione,  sine  ullo  verborum  circuitu.  tractare  jubebantur."  | 

In  1 22 1  Frederic  the  Second  prescribed  an  oath  as  follows: 

•'  We  will  that  the  advocates  to  be  appointed,  as  well  in  our 
court  as  before  the  justices  and  bailiffs  of  the  provinces,  before 
entering  upon  their  office,  shall  take  their  corporal  oath  on  the 
Gospels,  that  the  parties  whose  cause  they  have  undertaken 
they  will,  with  all  good  faith  and  truth,  without  any  tergiver- 
sation, succour;  nor  will  they  allege  any  thing  against  their 
sound  conscience ;  nor  will  they  undertake  desperate  causes ; 
and,  should  they  have  been  induced,  by  misrepresentation  and 
the  colouring  of  the  party  to  undertake  a  cause  which,  in  the 
progress  of  the  suit,  shall  appear  to  them,  in  fact  or  law, 
unjust,  they^^ill  forthwith  abandon  it.  Liberty  is  not  to  be 
granted  to  the  abandoned  party  to  have  recourse  to  another 
advocate.     They  shall  also  swear  that,  in  the  progress  of  the 

*  Recueil  genSrale.    Tome  XII.  (1514-1546),  No.  235,  page  515. 

t  This  was  always  the  duty  of  the  lawyer  at  tlie  Common  law  of  England.  See  Viner's 
Abridgment,  Title  Pauper,  etc. 

X  Lawyers  were  present  at  the  trial  who  were  enjoined  to  handle  the  cases  of  litigants 
without  artfulness  and  with  simple  language  without  any  circumlocution. 


20 


suit,  they  will  not  require  an  additional  fee,  nor  on  the  part 
of  the  suit  enter  into  any  compact;  which  oath  it  shall  not 
be  sufficient  for  them  to  swear  to  once  only,  but  they  shall 
renew  it  every  year  before  the  officer  of  justice.  And  if 
any  advocate  shall  attempt  to  contravene  the  aforesaid  form 
of  oath  in  any  cause,  great  or  small,  he  shall  be  removed 
from  his  office,  with  the  brand  of  perpetual  infamy,  and  pay 
three  pounds  of  the  purest  gold  into  our  treasury.'  "* 

Paul  Fournier,  Les  officialites  au  nioyeii  age.  Etude  sur 
I'organisation,  la  competence  et  la  procedure  des  tribunaux 
ecclesiastiques  ordinaires  en  France,  de  ii8o  a  1328,  Paris, 
1880,  page  21,  lines  1-6,  says  that:  "When  entering  upon  his 
duties,  the  official  swore  an  oath  to  perform  his  duties  with 
integrity,  to  defend  and  guard  the  jurisdiction  of  his  court, 
and  in  no  wise  to  permit  a  lessening  of  its  privileges.  In 
certain  localities,  he  had  to  renew  this  oath  annually.  The 
obligation  of  the  oath  was  required  of  all  officials  of  the 
ecclesiastical  court  (la  cour  spirituelle)." 

This  statement  rests  upon  the  documentary  evidence  fur- 
nished by  Giovanni  Domenico  Mansi  in  his  collection  of  the 
orders,  decrees,  and  statutes  of  the  councils  and  synods  of 
the  Mediaeval  Church. f  From  the  large  number  of  statutes 
concerning  the  oath,  duties,  and  privileges  of  lawyers  con- 
tained in  this  collection  a  few  are  as  follows : 

The  Council  of  Rouen,  held  A.D.  123  i,  decreed  in  section 
45  of  its  statutes,  %  that: 

*"  Oaths;  their  Origin,  Nature,  and  History,"  by  James  Endell  Tyler,  B.D. 
London,  1835.     Page  300. 

t  Labbe,  Philippe,  and  Gabriel  Crossart,  "  Sacrorum  conciliorum  nova  et  amplissima 
collectio  ,  .  .  editio  novissima  a  .  .  .  patre  Mansi  edita.  Florentiae,  1759." 
Reproduction  in  facsimile.     Paris,  Welter,  1901. 

X  Concilium  Provinciale  celebratum  Rotomagi.  Capitulum  45,  in  Labbe  and 
Crossart,  volume  23  (1903),  col.  216. 


21 


"  Every  single  advocate  shall  swear  that  he  will  faith- 
fully perform  his  duties ;  that  he  will  not  support  cases 
that  are  unjust  or  militate  against  his  conscience ;  that 
he  will  not  abstract  (embezzle)  documents  of  his  party 
(client),  nor  cause  such  to  be  abstracted;  that  he  will 
not,  to  his  knowledge,  use  false  pleas,  or  such  as  have 
been  malitiously  excogitated  ;  that  he  will  not  bring  it 
about  that  falsehoods  and  surreptions  be  made,  or  that 
false  documents  be  produced  in  his  case ;  nor  that  he 
will  prolong  (delay)  the  case  of  his  client  as  long  as 
he  believes  that  he  is  acting  in  the  interest  of  the  client 
himself;  and  that  in  those  matters  which  shall  be  trans- 
acted in  court  and  concerning  which  requirements  are 
made  of  him  by  the  Judges,  he  will  not  silence  the 
truth  according  to  his  belief;  and  that  if  he  become 
convinced  of  being  inadequate  to  the  handling  of  the 
case,  he  will  have  conference  with  the  procurators ;  and 
that  he  will  prepare  with  his  own  hand  a  journal  and  the 
acts  in  cases  which  he  has  taken,  as  faithfully  as  pos- 
sible ;  or  that  he  will  cause  them  to  be  written  out,  in 
case  he  be  neither  able  nor  willing  to  do  so  himself." 

The  same  year,  1231,  the  bishops  of  the  Province  of  Tours, 
under  Archbishop  Juhel  de  Mayenne,  assembled  a  council  at 
Chateau-Gontier,  of  whose  reform-canons  section  36, 
entitled  :  "  Concerning  the  oath  of  the  advocates,"  states 
that:  "The  advocates  who  in  accordance  with  usage  receive 
pay,  shall  by  no  manner  of  means  be  admitted,  unless  they 
have  been  sworn  in.  The  formula  for  such  an  oath  is  thus: 
That  they  shall  not  favor  (take)  knowingly  cases  that  are 
not   just;    nor    shall  they  bring    about,   with    malice    afore- 


22 


thought,  undue  delay  or  haste  in  the  conduct  of  cases  by- 
means  of  false  oath,  rather  than  stand  by  the  truth.  Nor 
shall  they  instruct  their  client  toward  malitious  answer  or 
statement ;  nor  shall  they  after  the  published  attestations,  or 
at  any  stage  of  the  trial,  nor  even  before  the  oath  suborn 
witnesses,  or  cause  them  to  be  suborned.  Nor  shall  they 
permit  their  client  to  produce  false  witnesses  ;  and  if  they 
should  gain  knowledge  thereof,  they  shall  reveal  such  to 
the  court.  If  memorials  (briefs)  are  to  be  made  they  shall 
do  so  in  good  faith,  and  not  withdraw  from  court  malitiously, 
until  the  memorial  be  completed  and  admitted  in  court. 
Clients  they  shall  expedite  to  the  best  of  their  ability,  and  in 
good  faith.  Nor  shall  they  bother  (literally  burden)  the 
Judge  with  objections,  believing  that  they  will  give  in  to 
them.  They  shall  sustain  the  honor  of  the  court,  nor  perpe- 
trate in  court  a  falsehood."  * 

The  same  Bishop  Juhel  in  a  synod  at  Tours,  A.D.  1236, 
stated  in  Chap.  2,"  Concerning  advocates,"  that :  "  Inasmuch 
as  through  the  ignorance  of  advocates  or  scribes  many  sus- 
tain losses  in  trials,  therefore  we  ordain  that  none  shall  be 
admitted  in  public  trials,  unless  they  have  studied  law  for 
three  years,  or  have  proven  capable,  in  the  past,  in  the 
conduct  of  cases."  | 

In  1278  the  synod  of  Langeais,  in  France,  under  the 
presidency  of  the  Metropolitan  of  Tours,  Jean  de  Montse- 
reau,  ordained  that:  "Without  mentioning  anything  new,  we 
ordain,   that  the   customary  pleaders   or  advocates   of  trials 

*  Concilium  apud  Castrum  Gonterii.  Capitulum  36  :  "  De  juramento  advocatorum," 
in  Labb6  and  Crossart,  volume  23,  columns  240,  241. 

+  Concilium  Turonense.  Capitulum  2:  "  De  advocatis,"  in  Labbe  and  Crossart, 
volume  23,  columns  411,  412. 


23 

shall  swear  at  the  time  when  they  are  admitted  to  the  court 
either  for  the  purpose  of  stating  or  defending  a  case  that 
knowingly  they  will  not  favor  cases  that  are  unjust,  and 
that  they  will  give  their  clients  as  faithful  a  defense  as  is 
in  their  power.  And,  inasmuch  as  not  a  few  cases  have 
been  lost  through  ignorance  on  the  part  of  advocates,  we, 
therefore,  will  that  none  shall  be  admitted  to  conduct  cases  in 
the  ecclesiastical  court,  unless  they  have  studied  three  years 
at  least  in  canon  and  civil  law,  or  are  otherwise  made  experts 
in  the  performance  of  their  duties.  To  be  sure,  all  other 
statutes  promulgated  in  regard  to  advocates,  are  remaining 
in  full  force."  * 

In  1295  Robert  of  Winchelsea,  Archbishop  of  Canterbury, 
issued  "  Statuta  et  ordinationes  "  for  the  better  administra- 
tion of  his  diocese.  Chapter  3  of  these  statutes  and  orders 
describes  the  Form  of  oath  of  advocates  and  procurators 
(z.^.,  attorneys  and  barristers),  as  follows: 

"  Advocates  also  and  the  general  procurators  of  the 
aforesaid  consistory,  may  swear  similarly  the  oath  written 
above  (Section  i  :  formula  of  the  oath  of  judges),  with  these 
additions,  unless  they  should  be  contained  in  the  afore- 
mentioned formula,  that  they  will  observe  the  aforesaid 
customs  and  statutes,  as  far  as  they  afifect  them,  and  that 
they  will  bring  no  case  to  trial,  unless  they  believe  it  to  be 
true  and  honest,  upon  the  information  on  the  part  of  their 
clients;  that,  in  receiving  informations  from  their  clients, 
they  will  elicit  from  them,  with  all  possible  caution,  the 
truth  of  the  case,  and  they  will  clearly  show  their  clients  the 

*  Concilium  Langesiense.  Capitulum  15:  "  De  advocatis,"  in  LabVju  and  Crossart, 
volume  24  (1903),  column  216. 


24 

dangers  to  which  they  expose  themselves  in  legal  proceed- 
ings as  far  as  they  know,  declining  to  prosecute  any  further 
desperate,  bad  cases;  and  as  soon  as  the  cases  or  surround- 
ing conditions  show  themselves  to  be  unjust  (dishonest) 
from  the  point  of  view  of  the  law,  they  shall  relinquish  them 
entirely."  * 

In  this  connection  the  lawyer's  oath  in  use  in  the  north  of 
Europe  in  olden  times  is  of  interest. 

The  code  of  Danish  laws  promulgated  by  Christian  V.  of 
Denmark  and  Norway  in  1683  as  a  revision  of  the  code 
completed  in  1669,  contained  a  chapter  entitled  "  Of  those 
who  are  allow'd  to  plead  the  Causes  of  others,  or  their  own," 
which  provided   that 

"  Lawyers  who  are  allowed  to  plead  Causes,  shall  be 
Men  of  Probity,  Character,  and  known  Repute. 

"  In  Cities  shall  be  appointed  such  a  Number  of 
Lawyers  as  are  really  requisite. 

"No  one  shall  be  admitted  as  a  Lawyer  to  act,  who 
does  not  take  an  Oath  before  the  Mayor  and  Aldermen, 
that  he  will  undertake  no  Cause  he  knows  to  be  bad, 
or  iniquitous;  that  he  will  avoid  all  Fraud  in  pleading, 
bringing  Evidence,  and  the  like:  That  he- will  abstain 
from  all  Cavils,  Querks  and  Chicanery;  and  never  seek 
by  Absence,  Delays,  or  superfluous  Exceptions,  to  pro- 
crastinate a  Suit :  That  he  will  use  all  possible  Brevity 
in  transcribing  Processes,  Deeds,  Sentences,  &c.  That 
he  will  never  encourage  Discord,  or  be  the  least  Hind- 
rance to   Reconciliation :   That   he  will   exact  no  exor- 

*  Labbe  and  Crossart,  volume  24,  column  1149. 


25 

bitant  Fees  from  the  Poor,  or  others :  And  that  he  will 
act  honestly,  and  to  the  best  of  his  Power,  for  all  his 
Clients.  Of  this  Oath  the  Judges  shall  admonish  the 
Lawyers  in  dubious  Cases,  and  if  they  think  proper, 
require  a  Renewal  of  it  in  the  Court;  and  moreover, 
command  them  to  abstain  from  all  Manner  of  Scurrility, 
and  Abuse,  in  their  Pleadings,  especially  where  the 
Process  does  not  concern  the  Fame  of  the  Defendant. 

"  A  Lawyer  defective  in  this  his  Duty  shall  be  dis- 
carded, rendered  incapable  of  ever  after  pleading,  and 
moreover  punishment  in  Proportion  to  his  Offence."  * 

The  earliest  authentic  forms  of  the  lawyer's  oath  in 
England  now  to  be  found  are  those  of  the  Serjeant-at-Law 
and  of  the  King's  Serjeant  in  an  ancient  Roll  of  Oaths  in  the 
reign  of  Queen  Elizabeth,  which  was  until  recently  kept  in 
the  Crown  Office  at  Westminster,  but  is  now  at  the  Record 
Office  in  Chancery  Lane,  London.  The  Deputy  Clerk  of  the 
Crown  reported  to  the  Select  Committee  of  the  House  of 
Commons  upon  the  Public  Records  of  the  Kingdom  in  1800 
as  to  this  Roll  as  follows : 

"  There  is  no  date  to  the  Roll  above-mentioned,  but 
it  appears  to  have  been  written  in  the  reign  of  Queen 
Elizabeth,  and  has  been  altered  (only  in  form)  to  make 
the  oaths  applicable  to  the  reign  of  King  Charles." 

I  have  recently  personally  examined  this  Roll,  and  careful 
inspection  of  it  confirms  the  above  statement.  This  report 
of  the  Deputy  Clerk  also  shows  that  the  oaths  of  the  Ser- 

*The  Danish  Laws:  Or  the  Code  of  Christian  the  Fifth,  Faithfully  translated  for 
the  Use  of  the  English  Inhabitants  of  the  Danish  Settlements  in  America.  London, 
1756.  pages  58,  59. 


26 


jeants-at-La\v  and  of  the  King's  Serjeant  were  administered 
by  the  Clerk  of  the  Crown,  and  that  there  was  no  record  in 
the  books  of  the  Crown  Office  showing  that  any  change  had 
ever  been  made  in  their  form.* 

These  oaths  as  now,  copied  from  the  Roll    itself,  are  as 
follows : 

Ki)ig' s  Serjeant. 
Ye  shall  Swear,  That  well  and  truly  ye  shall  serve  the 
King  and   His  People,  as  one  of  His  Serjeants  of  the 
„     _  Law,    and    truly    council    the    King    in    His 

Sacrra  ser-  ^  o 

vient  regis  ad  Matters  whcn  ye  shall  be  called,  and  duely 
^^^^'  and  truly  minister  the  King's  Matters,  after 

the  Course  of  the  Law,  to  your  Cunning:  ye  shall  take 
no  Wages  nor  Fee  of  any  Man  for  any  Matter  where 
the  King  is  Party  against  the  King;  ye  shall  as  duly 
and  hastily  speed  such  Matters  as  any  Man  shall  have 
to  do  against  the  King  in  the  Law,  as  ye  may  lawfully 
do  without  Delay  or  tarrying  of  the  Party  of  his  lawful 
process  in  that  that  belongeth  to  you ;  ye  shall  be 
attendant  to  the  King's  Matters  when  ye  shall  be  called 
thereto;  as  God  you  help,  and  by  the  Contents  of  this 
Book 

Serjeant  at  Law. 
Ye  shall  Swear,  That  well  and  truly  ye  shall  serve  the 
King's  People  as  one  of  the  Serjeants  at  the  Law,  and 
ye  shall  truly  council  them  that  ye  shall  be 

Sacrum  ser-        ^  •'  ^ 

vientum  ad  retained  with  after  your  Cunning;  and  ye 
*^^"''  shall  not  defer,  tract,  or  delay  their  Causes 

willingly,  for  covetous  of  Money,  or  other  Thing  that 
may  turn  you  to  Profit;  and  ye  shall  give  due  Attend- 
ance accordingly;  as  God  you  help,  and  by  the  Con- 
tents of  this  Book,  t 

♦Reports  of  House  of  Commons,  Vol.  XV.  (Appendix  D.  2.  C),  p.  98. 
+  These  oaths  are  numbered  12  and  13  on  the  original  Roll. 


27 

This  Ancient  Roll  contains  no  form  of  Attorney's  Oath, 
but  attorneys  were  sworn  certainly  as  early  as  1402,  when 
it  was  provided  by  Act  of  Parliament  as  follows : 

"  For  sundry  Damages  and  Mischiefs  that  have  ensued 
before  this  Time  to  divers  Persons  of  the  Realm  by  a 
great  Number  of  Attornies,  ignorant  and  not  learned  in 
the  Law,  as  they  were  wont  to  be  before  this  Time  ;  (2) 
it  is  ordained  and  established,  That  all  the  Attornies 
shall  be  examined  by  the  Justices,  and  by  their  Discre- 
tions their  Names  put  in  the  Roll,  and  they  that  be  good 
and  vertuous,  and  of  good  Fame,  shall  be  received  and 
sworn  well  and  truly  to  serve  in  their  Offices,  and  espe- 
cially that  they  make  no  Suit  in  a  foreign  County;  and 
the  other  Attornies  shall  be  put  out  by  the  Discretion  of 
the  said  Justices;  (3)  and  that  their  Masters,  for  whom 
they  were  Attornies,  be  warned  to  take  others  in  their 
Places  so  that  in  the  mean  Time  no  Damage  nor  Preju- 
dice come  to  their  said  Masters.  (4)  And  if  any  of  the 
said  Attornies  do  die,  or  do  cease,  the  Justices  for  the 
time  being  by  their  Discretion  shall  make  another  in  his 
Place,  which  is  a  vertuous  Man  and  learned,  and  sworn 
in  the  same  Manner  as  afore  is  said;  (5)  and  if  any 
such  Attorney  be  hereafter  notoriously  found  in  any 
Default  of  Record,  or  otherwise,  he  shall  forswear  the 
Court,  and  never  after  be  received  to  make  any  Suit  in 
any  Court  of  the  King ;  (6)  And  that  this  Ordinance  be 
holden  in  the  Exchequer  after  the  Discretion  of  the 
Treasurer  and  of  the  Barons  there."  * 

The  earliest  authentic  record  of  an  Attorney's  Oath 
now  to  be  found  is  in  the  famous  Red  Book  of  the  Exchequer 
preserved    in    the    Record    Office.     This    book    was   a    reg- 

*4  Henry  IV.,  Cap.  18.  1402. 


28 


ister  of  important  documents,  forms  of  oaths  and  other 
matters  which  it  was  deemed  desirable  to  preserve  in  a  per- 
manent form,  transcribed  from  mediaeval  Remembrancer 
Books  and  other  sources.  It  was  doubtless  a  book  of 
precedents  in  the  Court  of  Exchequer  from  a  very  early 
period,  perhaps  as  early  as  the  year  1246,  and  additions  were 
made  to  it  from  time  to  time,  notably  of  most  of  the  forms 
of  oaths  contained  in  it.* 

In  this  book  is  found  the  form  as  follows: 

"  The  Oath  of  the  Attorneys  in  the   Office  of  Pleas!' 

"  You  shall  doe  noe  Falshood  nor  consent  to  anie  to 
be  done  in  the  Office  of  Pleas  of  this  Courte  wherein 
you  are  admitted  an  Attorney.  And  if  you  shall  knowe 
of  anie  to  be  done  you  shall  give  Knowledge  thereof  to 
the  Lord  Chiefe  Baron  or  other  his  Brethren  that  it  may 
be  reformed  you  shall  Delay  noe  Man  for  Lucre  Gaine 
or  Malice  you  shall  increase  noe  Fee  but  you  shall  be 
contented  with  the  old  Fee  accustomed.  And  further 
you  shall  use  your  selfe  in  the  Office  of  Attorney  in  the 
said  office  of  Pleas  in  this  Courte  according  to  your 
best  Learninge  and  Discrecion.     So  helpe  you  God." 

No  original  record  of  the  oath  of  an  attorney-at-law  other 
than  the  foregoing  oath  from  the  Red  Book  is  now  to  be 
found,  but  such  an  oath  was  doubtless  framed  and  in  use  cer- 
tainly from  the  time  of  the  Act  of  Henry  IV.  in  1402,  and 
the  form  of  this  oath,  which  it  will  be  observed  follows  the 
provisions  of  that  Act,  is  found  in   a  rare  and  curious  book 

*  Introduction  to  the  Red  Book  of  the  Exchequer,  Part  I.  Edited  by  Hubert  Hall 
of  the  Public  Record  Office.  1896. 


29 

printed  in  1649,  called  "The  Book  of  Oaths,"  the  title-page 
of  which  illustrates  the  view  then  taken  of  official  oaths. 
It  is  as  follows  : 

THE 

BOOK    OF    OATHS, 

AND 

The  fever  all  forms  thereof^ 
both  Ant  lent  and  Modern. 
Faithfully  Collected  out  of 
fundry  Authentike  Books  and 
Records.,   not  heretofore  extant^ 
compiled  in  one   Volume. 
Very  ufeful for  all  perfons  whatfoever, 
especially  thofe  that  undertake  any  Of- 
fice of  magif  trade  or  publique  Imploy- 
ment  in  the  Co?n??ion-wealth . 
Whcreunto  is  added  a  perfect  Table. 


Numb.    30.    2.     //    a    man  vo-w  a  vow    unto    the    Lord,    or 
Jtveare  an  oath   to  bind  his  foule  with  a  bond :  he  f hall 

not  breake  his  word,  he  J  hall  doe  according  to  all  that 

proceedeth  out  of  his  mouth. 
Heb.  6.   16.       For  ))ten  verily  fweare  by  the  greater^  and  an 

oath   for  confirmation  is  to  them  an  end  of  all  ftrife. 


Printed  at  London  for  W.  Lee,  M.  Walbancke, 
D.  Pakeman,  and  G.  Bedle.    1649. 


30 

This  oath,  found  on  page  29  of  the  Book  of  Oaths,  is  as 
follows : 

The  Oath  of  an  Attorney-at-Laiv . 
Vou  shall  doe  no  falshood,  nor  consent  to  any  to  be 
done  in  the  Court,  and  if  you  know  of  any  to  be  done 
you  shall  give  knowledge  thereof  unto  my  Lord  Chiefe 
Justice,  or  other  his  Brethren,  that  it  may  be  reformed  ; 
you  shall  delay  no  man  for  lucre  or  malice  ;  you  shall 
encrease  no  Fees,  but  shall  be  contented  with  the  old 
Fees  accustomed ;  you  shall  plead  no  Forraigne  Plea 
nor  suffer  no  Forraigne  Suits  unlawfully  to  hurt  any 
man,  but  such  as  shall  stand  with  order  of  the  Law,  and 
your  conscience;  you  shall  scale  all  such  Processe  as 
you  shall  sue  out  of  the  Court  with  the  Scale  thereof,  and 
so  the  Kings  Majesty,  and  my  Lord  Chiefe  Justice  dis- 
charged for  the  same ;  yee  shall  not  wittingly  nor 
willingly  sue,  nor  procure  to  be  sued  any  false  Suit,  nor 
give  ayde,  nor  consent  to  the  same,  in  paine  to  be 
expulsed  from  the  Court  for  ever;  And  furthermore, 
you  shal  use  your  selfe  in  the  Office  of  an  Attorny 
within  the  Court  according  to  your  Learning  and  dis- 
cretion ;   so  helpe  you  God,  etc. 

A  second  edition  of  this  book  was  printed  in  1689,  and 
contains  the  Attorney's  Oath  in  the  same  form. 

The  following  oaths  of  office  taken  from  the  Book  of 
Oaths  in  the  office  of  the  Clerk  of  the  Crown  and  the  Petty 
Bag  in  Chancery,  now  deposited  in  the  Record  Office,  are  of 
interest  as  conforming  substantially  to  the  Oaths  of  the 
King's  Serjeants  and  the  Serjeants  at  Law : 

King' s  Counsel. 
Ye  shall  Swear,  That  well  and  truly  ye  shall  serve  the 
King  as   one  of  his   Council    learned    in   the   Law,  and 


31 

truly  counsel  the  King  in  his  Matters  when  ye  shall  be 
called,  and  duely  and  truely  minister  the  King's  Matters 
and  sue  the  King's  Process  after  the  Course  of  the  Law, 
and  after  your  Cunning;  ye  shall  take  no  Wages  nor 
Fee  of  any  Man  for  any  Matter  against  the  King,  where 
the  King  is  Party  ;  ye  shall  duely,  in  convenient  Time, 
speed  such  Matters  as  any  Person  shall  have  to  do  in 
the  Law  against  the  King,  as  ye  may  lawfully  do,  with- 
out long  Delay,  tracting  or  tarrying  the  Party  of  his 
lawfull  Process  in  that  that  to  you  belongeth  ;  ye  shall 
be  attendant  to  the  King's  Matters  when  ye  shall  be 
called  thereto;  as  God  you  help,  and  by  the  Contents  of 
this  book. 

Attorney  General. 
Ye  shall  Swear,  That  well  and  truly  ye  shall  serve  the 
King  as  his  Attorney  General,  in  all  his  Courts  of 
Record,  within  the  Kingdom  of  Great  Britain  and  truly 
counsell  the  King  in  his  Matters  when  ye  shall  be  called, 
and  duly  and  truly  minister  the  King's  Matters,  and  sue 
the  King's  Process  after  the  Course  of  the  Law,  and 
after  your  Cunning;  ye  shall  take  no  Wages  nor  Fee 
of  any  Man  for  any  Matter  against  the  King,  where  the 
King  is  Party;  ye  shall  duely,  in  convenient  time,  speed 
such  Matters  as  any  Person  shall  have  to  do  in  the  Law 
against  the  King,  as  ye  may  lawfully  do  without  long 
delay,  tracting  or  tarrying  the  Party  of  his  lawful  Process 
in  that,  that  to  you  belongeth;  ye  shall  be  attendant  to 
the  King's  Matters  when  ye  shall  be  called  thereto ;  as 
God  you  help,  and  by  the  Contents  of  this  Book. 

Solicitor  General. 
Ye  shall  Swear,  That  well  and  truly  ye  shall  serve  the 
King  as  his  Solicitor  General  in  all  his  Courts  of  Record 
within  the  Kingdom  of  Great  Britain,  and   truly  counsell 


32 

the  King  in  his  Matters  when  ye  shall  be  called,  and 
duly  and  truly  minister  the  King's  Matters,  and  sue  the 
King's  Process,  after  the  Courses  of  the  Law,  and  after 
your  Cunning;  ye  shall  take  no  Wages  nor  Fee  of  any 
Man,  for  any  Matter  against  the  King,  where  the  King 
is  Party;  ye  shall  duely,  in  convenient  Time,  speed 
such  Matters  as  any  Person  shall  have  to  do  in  the  Law 
against  the  King,  as  ye  may  lawfully  do,  without  long 
Delay,  tracting  or  tarrying  the  Party  of  his  lawful! 
Process,  in  that,  that  to  you  belongeth ;  ye  shall  be 
attendant  to  the  King's  Matters  when  ye  shall  be  called 
thereto ;  as  God  you  help,  and  by  the  Contents  of  this 
Book. 

There  is  much  curious  learning  in  the  early  English  Law 
with  regard  to  serjeants-at-law,  apprentices  and  barristers. 
Fortescue,  who  was  Chief  Justice  to  Henry  VL,  in  "  De  Laiidi- 
bus  Legiim  Angliac,"  devotes  a  chapter  to  the  "  State, 
Degree  and  Creation  of  a  Serjeant-at-Law,"  in  which  he 
says  at  the  end  : 

"  There  is  not,  in  any  other  Kingdom  or  State,  any 
particular  Degree  confer'd  on  the  Practisers  of  tne  Law 
as  such  ;  unless  it  be  in  the  Kingdom  of  England. 
Neither  does  it  happen,  that  in  any  other  Country,  an 
Advocate  enriches  Himself  so  much  by  his  Practice  as 
Serjeant  at  Law.  No  one,  be  he  never  so  well  read 
and  practised  in  the  Laws,  can  be  made  a  Judge  in  the 
Courts  of  Kings  Bench,  or  the  Co^nmon  Pleas,  which 
are  the  Supreme  Ordinary  Courts  of  the  Kingdom, 
unless  He  be  first  called  to  be  a  SERJEANT  AT  LAW: 
Neither  is  any  one,  beside  a  SERJEANT,  permitted  to 
plead  in    the  Court   of    Common  Pleas,  where  all    real 


33 

Actions  are  pleaded :  Wherefore,  to  this  Day,  no  one 
hath  been  advanced  to  the  State  and  Degree  of  a  SER- 
JEANT AT  Law,  till  He  hath  been  first  a  ( i )  Student, 
and  a  Barrister,  full  Sixteen  Years :  Every  Serjeant 
wears  in  Court  a  White  Silk  Coif,  which  is  a  Badge  that 
they  are  Graduates  in  Law,  and  is  ike  Chief  Ensign  of 
Habit  with  which  SERJEANTS  AT  Law  are  distinguished 
at  their  Creation.  Neither  shall  a  Judge,  or  a  SERJEANT 
AT  Law,  take  off  the  said  Coif,  tho'  he  be  in  the  Royal 
Presence  and  talking  with  the  King's  Majesty." 

In  the  notes  upon   Fortescue,  in  the   edition  of  1741  it  is 
said  : 

"  It  may  be  objected  here  that  our  Author  makes  no 
mention  of  Student  or  Barrister,  neither  is  it  precisely 
known  whether,  at  that  Time,  the  Degree  of  Barrister 
was  confer'd  or  not,  but  it  is  very  probable  that  the 
same  regular  Steps  might  be  taken,  in  order  to  qualify 
Persons  to  practice  in  the  Courts  of  Law,  as  have  been 
observed  since  that  Time.  The  Reason  is  the  same. 
Mr.  Selden,  in  his  Note  ad  Cap.  VIII.  (2)  makes  men- 
tion of  the  Students  in  the  Civil  Law  of  2,  3,  4  and  5 
Years  standing,  and  seems  to  hint  that  an  APPRENTICE 
AT  Law  is  a  Degree;  He  quotes  i  Ed.  3  fol.  17,  a.  pi. 
3,  also  a  Monument  of  Parliament  20  Ed.  i.  Fleta, 
lib.  2.  cap.  37,  and  the  Epistle  of  the  9  Reports,  where 
more  is  out  of  Antiquity  touching  these  APPRENTICES, 
whom  I  judge  to  be,  what  they  now  call,  BARRISTERS." 

Also  that 

"  Serjeant  at  Law  imports  one  who  attends  the  Service 


34 

of  the  King  and  his  People  in  the  Study,  Profession  and 
Practice  of  the  Law :  A  State  and  Degree  in  the  Law, 
out  of  which,  as  the  Seminary  of  Justice,  the  Judges  are 
called  ;  for  none  but  a  Serjeant  at  Law  can  be  a  Judge 
of  either  Bench,  or  Chief  Baron  of  the  Exchequer.  The 
Honour  of  Serjeancie  is  a  Title,  State  and  Dignity  of 
great  Respect,  as  appears  from  the  King's  Writ,  or 
Patent  of  his  Creation.  The  Lord  Coventry,  in  his 
Speech  at  the  Creation  of  Serjeants,  says,  '  It  is  a  very 
ancient  State  and  Degree,  so  ancient,  that  Books  are  as 
silent  in  it  as  in  the  Commencement  of  the  Common 
Law  its  self.'  "  * 

The  order  of  serjeants-at-law  was  so  well  established  that 
Chaucer  introduced  a  serjeant-at-law  into  that  company  of 
Pilgrims  whom  he  made  to  set  out  from  the  Tabard  Inn  in 
Southwark,  in  1383,  as  follows: 

"  A  Serjeant  of  the  Law,  prudent  and  wise, 
That  had  often  been  at  consultation,  f 
There  was  also,  ful  rich  of  excellence. 
Discreet  he  was  and  of  great  reverence; 
He  seemed  such,  his  words  were  so  wise. 
Justice  he  was  full  often  at  Assise, 
By  patent  and  by  pleine  commission  : 
For  his  science  and  for  his  high  renown. 

•  De  Laudibus  Legum  Angliae.  Notes  of  Selden,  etc.  Edition  1741,  pages  113, 
115,  116.  See  also  Antiquities  of  the  Inns  of  Court  and  Chancery  (Herbert),  page  358, 
et  seq.\  Order  of  the  Coif  (Pulling);  Observations  Touching  the  Antiquity  and 
Dignity  of  the  Degree  of  Serjeant-at-Law  (Wynne)  ;  Lives  of  the  Chancellors 
(1712)  Vol.  IL;  Whitelocke's  Memorials. 

fThe  original  reading  is  "at  the  parvis,"  meaning  the  porch  of  St.  Paul's  or  of 
Westminster  Abbey,  where  lawyers  were  wont  to  meet  their  clients  for  consultation. 
In  this  case,  as  in  some  others  in  the  passage,  I  have  ventured  to  put,  in  place  of  the 
original  words,  a  modern  form,  more  easily  understood  now,  but  which,  I  trust,  pre- 
serves the  author's  meaning. 


35 

Of  fees  and  robes  had  he  many  an  one; 

So  great  a  conveyancer  was  nowhere  known. 

All  was  fee  simple  to  him  in  effect, 

His  conveyancing  could  not  be  attacked. 

Nowhere  so  busy  a  man  as  he  there  was, 

And  yet  he  seemed  busier  than  he  was. 

In  terms  had  he  cases  and  decisions  all 

That  from  the  time  of  King  William  had  been  given; 

Thereto  he  could  endite  and  make  a  thing, 

There  could  no  wight  cavil  at  his  writing; 

And  every  statute  knew  he  fully  by  rote 

He  rode  but  homely  in  a  motley  coat 

Girt  with  a  sash  of  silk  with  small  bars." 

When  the  degree  of  a  serjeant-at-law  was  conferred,  it  was 
the  custom  for  the  Lord  Commissioner  appointed  by  the 
King  to  confer  it,  to  address  the  candidates  upon  the  charac- 
ter of  their  office  and  its  duties.  The  address  of  Lord  Com- 
missioner Whitelocke  to  the  new  serjeants-at-law,  November 
1 8,  1648,  when  they  appeared  at  the  Chancery  Bar  to  take 
upon  them  the  degree,  states  the  nature  of  the  lawyer's  office 
and  its  duties  as  then  understood.      He  said: 

"  I  hold  it  not  impertinent  to  mention  something  to  you  of 
the  duties  of  an  advocate  ;  which  are  some  of  them  to  the 
courts  and  some  to  the  clients. 

"  To  the  courts  of  justice  he  owes  reverence,  they  being 
the  high  tribunals  of  law,  of  which  Doctor  and  Student,  and 
the  statute  of  Marlebridge  saith,  Omnes,  tam  majores  quam 
minores,  justitiam  recipiant;*  and  therefore  great  respect 
and  reverence  is  due  to  them  from  all  persons,  and  more 
from  advocates  than  from  any  other. 

"  2.     An    advocate   owes    to    the    court    a   just   and    true 

*  Let  all,  as  well  the  greater  as  the  smaller,  receive  justice. 


36 

information.  The  zeal  of  his  client's  cause,  as  it  must  not 
transport  him  to  irreverence,  so  it  must  not  mislead  him  to 
untruths  in  his  information  of  the  court.  The  statute  of 
Will.  I,  Chap.  29,  and  the  Mirrour  of  Justices,  agree  in 
an  excellent  direction  in  this  point. 

"  '  When  a  good  cause  is  destroyed  by  misinformations  or 
unlawful  subtleties  or  deceits,  let  the  instruments  thereof 
take  heed  of  the  wo  denounced  by  the  Prophet  against  them 
that  call  good  evil  and  evil  good,  that  put  darkness  for 
light  and  light  for  darkness,  their  root  shall  be  rottenness, 
and  shall  go  up  as  dust.' 

"  Remember  that  in  your  oath  for  one  verb  [you  shall 
serve]  you  have  two  adverbs  [well  and  truly]. 

"  The  duties  of  advocates  to  their  clients  are  general  and 
particular. 

"  The  general  consist  in  three  things,  —  secrecy,  diligence, 
and  fidelity. 

"  I.  For  secrecy:  advocates  are  a  kind  of  confessors,  and 
ought  to  be  such,  to  whom  the  client  may  with  confidence 
lay  open  his  evidences,  and  the  naked  truth  of  his  case,  sub 
sigillo,  and  he  ought  not  to  discover  them  to  his  client's 
prejudice  ;  nor  will  the  law  compel  him  to  it. 

"2.  For  diligence  :  much  is  required  in  an  advocate  in 
receiving  instructions,  not  only  by  breviats,  but  by  looking 
into  the  books  themselves,  in  perusing  deeds,  in  drawing 
conveyances  and  pleas,  in  studying  the  points  in  law,  and  in 
giving  a  constant  and  careful  attendance  and  endeavour  in  his 
clients'  causes. 

"3.  For  fidelity:  it  is  accounted  vinculum  societatis. 
The  name  of  unfaithfulness  is  hateful  in  all ;  and  more  in 
advocates  than  others,  whom  the  client  trusts  with  his  liveli- 


37 

hood,  without  which  his  Hfe  is  irksome;    and  the  unfaithful- 
ness or  fraud  of  the  one  is  the  ruin  of  the  other. 

"  Virgil,  in  his  fiction  of  yEneas  going  down  to  Hell,  sets 
these  in  the  front  of  crimes,  — 

"  Hie,  quibus  invisi  fratres,  dum  vita  manebat, 
Pulsatusve  parens,  &i  frans  innexa  clienti, 
Inclusi  poenam  expeetant."  * 

"  For  your  duty  to  particular  clients  you  may  consider, 
that  some  are  rich,  yet  with  such  there  must  be  no  endeavour 
to  lengthen  causes,  to  continue  fees.  Some  are  poor,  yet 
their  business  must  not  be  neglected  if  their  cause  be  honest; 
they  are  not  the  worst  clients,  though  they  fill  not  your 
purses,  they  will  fill  the  ears  of  God  with  prayers  for  you, 
and  he  who  is  the  defender  of  the  poor  will  repay  your 
charity.  Some  clients  are  of  mean  capacity;  you  must  take 
more  pains  to  instruct  yourself  to  understand  their  business. 
Some  are  of  quick  capacity  and  confidence,  yet  you  must  not 
trust  to  their  information.  Some  are  peaceable,  detain  them 
not,  but  send  them  home  the  sooner.  Some  are  contentious, 
advise  them  to  reconcilement  with  their  adversary.  Amongst 
your  clients  and  all  others,  endeavour  to  gain  and  preserve 
that  estimation  and  respect  which  is  due  to  your  degree,  and 
to  a  just,  honest,  and  discreet  person.  Among  your  neigh- 
bours in  the  country,  never  foment  but  pacify  contentions." 

"  And  what  honour  and  advantage  hath  been  gained  by 
any  the  most  eminent  of  your  predecessors  in  this  degree,  I 
do  heartily  wish  may  be  multiplied  unto  you."  f 

*  Here,  those  who,  while  alive,  hated  their  brothers,  beat  their  parents,  or  defrauded 
their  chents, imprisoned,  await  punishment. 

t  Whitelocke's  Memorials,  352-3-4-5.    Manning's  Serjeants'  Case,  pages  222-3-4-6. 


38 

Upon  this  foundation  of  the  English  law  and  this  concep- 
tion of  the  lawyer's  office  in  England,  the  office  was  estab- 
lished in  the  Colonies  and  Provinces  of  England  in  North 
America. 

An  examination  of  the  legislation  as  to  attorneys  in  the 
Colonies  which  became  the  thirteen  original  States  of  the 
Union,  shows  how  the  attorney's  office  was  recognized  and 
established  here. 

It  should  be  borne  in  mind,  however,  in  considering  this 
legislation  that  by  the  ancient  English  common  law  no  per- 
son had  a  right  to  appear  in  Court  by  an  attorney.  A  liti- 
gant could  advise  with  and  retain  the  "  man  of  lawe,"  who 
might  lawfully  "  stand  by  him  "  as  his  counsel,  but  could 
not  represent  him  in  all  the  responsibilities  of  litigation, 
devolved  on  the  suitor,  in  propria  persona. 

In  the  Harleian  MSS.  in  the  British  Museum  (298,  fo.  56), 
is  the  following  entry  of  a  plea  pleaded  by  Serjeant  Marshall 
in  an  action  (the  nature  of  which  does  not  appear),  pending 
in  the  King's  Bench  at  Oxford,  T.  25  Edw.  I. :  "  And  then 
Thomas  le  Mareschall  says,  that  he  is  a  common  serjeant- 
countor  before  justices  and  elsewhere,  wherever  he  can  be 
most  serviceable  in  his  office  of  a  common  serjeant-countor 
(coram  justiciariis,  et  alibi,  ubi  melius  ad  hoc  conduci 
poterit),  and  that  he,  in  the  plea  of  the  said  assise,  stood 
with  *  the  said  John  before  the  said  justices,  and  assisted  him 


*  A  German  equivalent  for  advocate,  used  even  to  this  day,  is  Rechtsbeistand ;  liter- 
ally, he  who  stands  by  (another)  in  matters  of  justice  and  law. 

Moriz  Heyne,  Deutsches  Worterbuch,  Volume  3  (1895),  column  49,  says  : 

Rechtsbeistand  (i)  =  Beistand  in  einer  Rechtssache  :  einen  Rechtsbeistand  leisten ; 
(2)  =  Person  die  solchen  leistet,  e.g.,  Rechtsbeistand  sein ;  einen  Rechtsbeistand 
mitbringen. 

Literal  translation  : 

Right-stand-by  (1)  =  stand-by  {i.e.,  help)  in  a  matter  of  law,  as  e.g.,  to  give  legal 


39 

herein,  as  much  as  he  could,  as  his  serjeant  (tanquam 
serviens  suus),  and  as  it  is  lawful  for  such  Serjeants  in  such 
cases  (et  sicut  talibus  servientibus  in  hujusmodi  casibus, 
licet)." 

In  the  Abbreviatio  Placitorum  in  Domo  Capitulari  Westm, 
asservat.  295  b,  is  the  following  entry,  respecting  an  advo- 
cate in  the  ecclesiastical  courts:  "Master  William  de 
Helmeswell,  and  Master  John  de  Maldone ;  were  attached  to 
answer  William  de  Welleby  of  a  plea  of  conspiracy. 
And  Master  John  says  that  he  is  a  commojt  advocate,  and 
stpod  with  the  said  Master  William  for  his  giving  (quod  est 
communis  advocatus,  et  stetit  cum  predicto  Magistro 
Willielmo,  pro  suo  dando),  against  the  said  William  de 
Welleby.  Master  William  says,  that  he  caused  him  to  be 
cited  for  another  trespass,  and  not  for  the  first.  But,  by  the 
jury,  —  he  is  guilty,  to  the  damage  of  the  said  William  de 
Welleby  of  twenty-four  marks.  And  Master  John  is 
acquitted,  because  he  is  a  common  advocate."  * 

According  to  the  old  Gothic  constitution  every  suitor  was 
obliged  to  appear  in  person  ;  and  by  the  ancient  common 
law    of   England    a    party  plaintiff   or  defendant  could    not 


assistance.  (2)  =  the  person  who  performs  such  duty,  e.g.,  to  be  a  right-stand-by ;  to 
bring  along  (into  court)  a  right-stand-by. 

In  other  words,  Rechtsbeistand  means  (i)  legal  assistance,  and  (2)  legal  assistant, 
i.e.,  legal  representative  or  standby  of  another  person  in  court. 

Grimm,  Deutsches  Worterbuch,  Volume  8  (1893),  column  424: 

Rechtsbeistand  :  ( i )  Beistand,  der  bei  einer  Rechtshandlungoder  vor  Gericht  geleistet 
wird.  The  formula  in  legal  documents  is  :  Vor  dem  Notar  N.  erscheint  die  Ehefrau  N. 
unter  Rechtsbeistand  ihres  Ehegatten.  (2)  Person,  die  einen  solchen  Beistand  leistet : 
thus,  sein  Rechtsbeistand,  der  Anwalt  N. 

Translation  : 

Right-stand-by.  (i)  Assistance  given  in  a  legal  action  or  in  court.  The  formula  in 
legal  documents  runs  thus  :  Before  the  Notary  N.  appears  the  wife  N.  with  the  legal 
assistance  of  her  husband.  (2)  Person  who  gives  such  assistance:  thus,  his  right 
stand  by  (legal  adviser),  the  attorney  N. 

*  Serviens  ad  Legem,  James  Manning,  page  170. 


40 

appear  in  Court  bj'  an  attorney  without  special  authority 
from  the  King,  by  writ  or  otherwise.  But  when  a  party  had 
made  his  personal  appearance,  any  Court  which  had  juris- 
diction by  writ,  might  permit  the  party  to  appear  by  attor- 
ney, and  a  Court  which  held  jurisdiction  without  a  writ 
might  admit  an  attorney  if  the  King  permitted,  but  not 
otherwise,  * 

This  probably  was  the  reason  why  in  the  early  colonial 
statutes  the  right  of  parties  to  appear  by  attorneys  was 
expressly  given.  It  is  true  that  there  were  men  of  law, 
and  pleaders,  as  they  were  called,  in  England  from  time 
immemorial,  and  when  William  the  Conqueror  in  order  to 
obtain  an  authentic  record  of  the  laws  and  customs  of  Eng- 
land called  together  a  body  of  English  nobles,  he  also  called 
with  them  English  lawyers  to  report  on  the  subject ;  but  it 
was  not  until  after  the  Conquest  when  justice  was  adminis- 
tered in  England  in  a  form  as  well  as  a  language  unknown 
to  the  English,  that  the  employment  of  lawyers  to  represent 
suitors  became  absolutely  necessary.  It  was  then  that  the 
English  word  *'  pleader "  gave  way  to  the  Norman  word 
"  conteur,"  or  in  English  "  countors,"  and  the  profession  of 
the  law  was  placed  under  legal  rules  of  conduct. 

It  is  interesting  to  note,  however,  that  in  the  early  days  of 
the  English  law  the  lawyer  stood  in  direct  relation  to  his 
client,  as  is  now  the  case  in  the  United  States.  The  modern 
English  Barrister  has  no  clients.  He  recognizes  only  Solici- 
to  rs  through  whom  alone  the  client  can  communicate  with 
him.  But  the  ancient  English  lawyer  knew  no  solicitor  or 
middle  man.  He  communicated  directly  with  his  client  at 
his  chambers,   at  the  Parvis,   in  the  Court,  or  wherever    he 

*Stjernho6k  de  Jur.  Goth  I.  i,  c.  6;  8  Coke,  58,  b. ;  Maugham  on  Attornies.page  6  . 


41 

could  best  serve  him,  and  served  him  in  any  capacity  he 
could,  either  as  counsel,  draftsman,  or  advocate.* 

The  administration  of  justice  was  probably  quite  as  well 
served  by  this  simple  relation  of  lawyer  and  client  as  it  is  by 
the  complicated  and  expensive  methods  of  the  English  prac- 
tice now. 

Parties  were  first  permitted  to  appear  by  attorneys  by  the 
Statute  of  Merton,f  A.D.  1235,  in  certain  cases. 

In  1275  ^  by  the  Statute  Primer  Westminster,  appearance 
by  attorneys  was  recognized  and  extended. 

In  1278,^  1285,^  1318,^  1322,^  1383^  statutes  were  passed 
extending  the  right  to  appear  by  attorneys,  and  in  1402  the 
first  act  was  passed  providing  for  the  admission  of  attorneys 
by  the  Courts  upon  examination  and  the  administration  of 
an  official  oath,  and  also  for  the  regulation  by  the  Courts  of 
the  conduct  of  attorneys.^ 

By  the  ancient  statutes  attorneys  were  required  to  appear 
in  Court  in  person  at  stated  periods,  and  if  they  did  not  for 
two  years  give  due  attendance  in  any  case  or  matter  they 
were  put  out  of  the  roll  and  could  not  practice  until  they 
were  again  admitted.  The  reason  of  this  doubtless  was  that 
it  was  thought  attorneys  ought  not  to  practice  in  the  Courts 
unless  they  kept  themselves  practically  qualified  for  the 
duties  of  their  office. 

The  legislation  in  the  different  States  as  to  the  lawyer's 
oath  has  been  substantially  as  follows  : 

*  Pulling,  Order  of  the  Coif,  page  71. 
t20  Hen.  3,  St.  Merton,  c.  10. 

1  3  Edw.  I,  St.  I  Westm.,  c.  29. 

2  6  Edw.  I,  St.  Gloucester,  c.  8. 

3  13  Edw.  I,  St.  I,  Westminster  2,  c.  10. 
<  12  Edw.  2,  St.  I,  c.  I. 

0  Statute  of  Carlisle,  15  Edw.  2,  st.  i. 
I"' 7  Richard  2,  c.  14. 
X4  Hen.  4,  c.  18. 


42 


IN    CONNECTICUT. 

The    la\v\-er's    office  was   recognized  and  an  official  oath 
prescribed  in  Connecticut  in  May,  1 708,  by  an  act  as  follows: 

"  For  the  better  regulating  proceedings  and  pleas  at 
the  bar  of  the  several  countie  courts  or  courts  of  assist- 
ants within  this  government, 

"  //  is  ordeined  by  this  Court  and  the  authoritie 
thereof,  That  no  person,  except  in  his  own  case,  shall 
be  admitted  to  make  any  plea  at  the  bar,  without  being 
first  approved  of  by  the  court  before  whom  the  plea  is 
to  be  made,  nor  until  he  shall  take  in  the  said  court  the 
following  oath,  viz. : 

"  You  shall  do  no  falshood,  nor  consent  to  any  to  be 
done  in  the  court,  and  if  you  know  of  any  to  be  done 
you  shall  give  knowledge  thereof  to  the  justices  of  the 
court,  or  some  of  them,  that  it  may  be  reformed.  You 
shall  not  wittingly  and  willingly  promote,  sue  or  procure 
to  be  sued  any  false  or  unlawful  suit,  nor  give  aid  or 
consent  to  the  same.  You  shall  delay  no  man  for  lucre 
or  malice,  but  you  shall  use  yourself  in  the  office  of  an 
Atturney  within  the  court  according  to  the  best  of  your 
learning  and  discretion,  and  with  all  good  fidelitie,  as 
well  to  the  court  as  to  the  client.      So  help  you  God."  * 

This  form    of  oath  was  included   in  the  Forms  of  Oaths 
Prescribed  and  established  in  1729.  f 

*Conn.  Colony  Records,  Vol.  5,  page  48. 

t  Acts  and  laws   of  Connecticut  in  New-England  in  America.    Edition   of   1750, 
page  180.     General  Assembly  held  at  New-Haven  on  the  9th  of  October,  1729. 


43 

The  form  now  in  use  is  substantially  the  same.      It  is  as 
follows : 

"  You  solemnly  swear  that  you  will  do  no  falsehood, 
nor  consent  to  any  to  be  done  in  court,  and  if  you  know 
of  any  to  be  done,  you  will  give  information  thereof  to 
the  judges,  or  one  of  them,  that  it  may  be  reformed  ; 
you  will  not  wittingly  or  willingly  promote,  sue,  or  cause 
to  be  sued,  any  false  or  unlawful  suit,  or  give  aid,  or 
consent,  to  the  same ;  you  will  delay  no  man  for  lucre 
or  malice ;  but  will  exercise  the  office  of  attorney, 
within  the  court  wherein  you  may  practice,  according  to 
the  best  of  your  learning  and  discretion,  and  with  fidelity, 
as  well  to  the  court  as  to  your  client ;  so  help  you 
God."  * 


♦General  Statutes  of  Conn.,  1902,  Section  4795. 


44 


IN    DELAWARE. 

In  1704  the  admission  of  lawyers  and  their  oath  of  office 
were  provided  for  by  "  An  Act  about  Attornies  and  Solici- 
tors," as  follows  : 

For  preventing  abuses  and  irregularities  in  all  and  every 
the  courts  within  this  her  Majesty's  government,  and 
that  all  Attornies  and  Solicitors  practising  therein  may 
be  duly  qualified  to  execute  and  perform  the  trust  in 
them  reposed  : 

Section  i.  Be  it  enacted  by  the  honorable  John  Evans, 
esq.  with  her  Majesty's  royal  approbation  Lieutenant  Gov- 
ernor of  the  counties  of  New-Castle,  Kent,  and  Sussex,  upon 
Delaware,  and  province  of  Pennsylvania,  by  and  with  the 
advice  and  consent  of  the  freemen  of  the  said  counties,  in 
General  Assembly  met,  and  by  the  authority  of  the  same, 
That  before  any  Attorney,  Solicitor,  or  other  person  whatso- 
ever, shall  be  admitted  to  plead  for  any  reward  or  fee  in  any 
of  the  courts  of  this  her  Majesty's  government,  such 
Attorney,  Solicitor,  or  other  person  as  aforesaid,  shall  take 
the  oaths,  and  repeat  and  subscribe  the  declaration  pre- 
scribed by  act  of  Parliament  in  England;*  and  shall  take 
the  oath  hereafter  mentioned,  viz.  You  shall  do  no  false- 
hood or  deceit,  nor  consent  to  any  to  be  done,  in  this  court, 
to  your  knowledge ;  and  if  you  know  of  any  to  be  done,  you 
shall  give  knowledge  thereof  to  the  Chief  Justice,  or  any 
other  the  justices  of  this  court,  that  it  may  be  reformed  : 
You  shall  delay  no   man  for  lucre  or  malice,  having  reason- 

*An  act  for  the  security  of  her  majesty's  person  and  government,  and  of  the 
succession  to  the  crown  of  Great-Britain  in  the  protestant  line. 


45 

able  fees  first  allowed  you  for  the  same  :  You  shall  plead 
no  foreign  plea,  nor  sue  any  foreign  suits,  unlawfully,  to  the 
hurt  of  any  man,  but  such  as  shall  (according  to  your  judg- 
ment) stand  with  the  order  of  the  law  and  your  own  con- 
science: You  shall  not  wittingly  or  willingly  sue,  or  procure 
to  be  sued,  any  false  suits,  nor  give  aid  or  consent  to  the 
same,  on  pain  of  being  expulsed  from  this  court  for  ever. 
And  further.  You  shall  truly  use  and  demean  yourself  in  the 
office  of  an  attorney  within  this  court,  according  to  your 
learning  and  discretion.     So  help  you  God.* 

In  1 72 1  this  form  of  oath  was  changed  by 

An  Act  for  the  establishing  courts  of  law  and  equity  within 
this  government,  as  follows : 

That  there  may  be  a  competent  number  of 
persons  of  an  honest  disposition,  and  learned  in  the  law, 
admitted  by  the  justices  of  the  said  respective  courts,  to 
practice  as  Attornies  there,  who  shall  behave  themselves 
justly  and  faithfully  in  their  practice,  and  before  they  are  so 
admitted,  shall  take  the  following  qualification,  — 

Thou  shalt  behave  thyself  in  the  Office  of  an  Attorney 
within  the  court  according  to  the  best  of  thy  learning  and 
ability,  and  with  all  good  fidelity  as  well  to  the  court  as  to 
the  client:  Thou  shalt  use  no  falsehood,  nor  delay  any 
person's  cause  through  lucre  or  malice. 

Sect.  27.  And  if  they  misbehave  themselves  therein,  they 
shall  suffer  such  penalties  and  suspensions  as  Attornies  at 
Law  in  Great  Britain  are  liable  to  in  such  cases.  By  which 
Attornies  actions  may  be  entered,  and  writs,   process,  decla- 

*  Laws  of  the  State  of  Delaware.  Edition  of  1797,  Vol.  i,  Chap.  XIII.,  Sect,  i, 
1704. 


46 

rations  and  other  pleadings ;  and  records  in  all  such  actions 
and  suits  as  they  shall  respectively  be  concerned  to  prosecute 
or  defend  from  time  to  time,  may  be  drawn,  and  with  their 
names  and  proper  hands  signed;  which  said  Attornies,  so 
admitted,  may  practice  in  all  the  courts  of  this  government, 
without  any  further  or  other  licence  or  admittance. 

Sect.  28.  Provided  always.  That  no  person,  not  being  an 
inhabitant  of  this  government,  or  of  the  province  of  Pennsyl- 
vania, shall  be  permitted  to  plead  in  any  court  or  courts 
within  this  government,  without  licence  first  obtained  from 
the  Governor  for  the  time  being,  by  the  recommendation  of 
the  Justices  of  one  of  the  County  Courts  of  this  government; 
unless  such  lawyer  or  law}'ers  shall  obtain  the  court's  leave, 
and  pay  to  the  said  court,  for  the  use  of  the  Governor,  the 
sum  of  Fifty  Shillings  for  each  court  he  shall  so  plead,  until 
licensed.* 

The  present  law  as  to  admission  and  oath  of  Attorneys 
is  as  follows : 

"  There  may  be  a  competent  number  of  persons,  of  an 
honest  disposition  and  learned  in  the  law,  admitted  by  the 
judges  of  the  respective  courts  to  practice  as  attornies  there, 
who  shall  behave  themselves  justly  and  faithfully  in  their 
practice;  and  if  they  misbehave  themselves  therein,  they 
shall  suffer  such  penalties  and  suspensions  as  attornies  at 
law  in  Great  Britain  are  liable  to.  Such  attornies  may  enter 
actions,  prosecute  and  defend  suits,  draw  writs,  process  and 
pleadings,  and  practice  generally  in  all  the  courts  of  this 
State  without  further  license. 

*  Laws  of  the  State  of  Delaware.  Edition  of  1797,  Vol.  i.  Chap.  LI  V.,  Sect.  26, 27, 
28.     1721. 


47 

"  Every  attorncy-at-law  shall,  in  like  manner,  besides  the 
constitutional  qualifications,  make  the  following  affidavit: 

"  '  I do  solemnly  swear  (or 

affirm)  that  I  will  behave  myself  in  the  office  of  an 
attorney  within  the  court,  according  to  the  best  of  my 
learning  and  ability  and  with  all  good  fidelity,  as  well  to 
the  court  as  to  the  client;  I  will  use  no  falsehood,  nor 
delay  any  person's  cause  through  lucre  or  malice.  So 
help  me  God  (or  so  I  affirm).'  "  * 

The  present  provision  as  to  the  admission  or  obligation  of 
attorneys  is  the  same  as  provided  by  the  Act  of  1721,  and 
the  oath  is  the  same,  but  in  addition  there  is  required  an 
oath  to  support  the  Constitution  of  the  State. | 


*  Revised  Statutes  of  Delaware,  1893,  Chap.  XCII., page  698;  Chap.  XXIV.,  Sect.  4. 
t  Laws  of  Delaware,  Revised  Code,  1893,  pp.  234,  698. 


48 


IN    GEORGIA. 

The  following  sections  of  the  English  act  of  1729  "  For 
the  Better  Regulation  of  Attorneys  and  Solicitors,"  *  were 
treated  as  in  force  in  Georgia  in  1731  : 

"  XIII.  And  it  is  hereby  further  enacted  by  the  authority 
aforesaid,  That  every  person  who  shall,  pursuant  to  this  act, 
be  admitted  and  enrolled  to  be  an  attorney  in  the  said  courts 
of  king's  bench,  common  pleas,  exchequer,  great  sessions  in 
Wales  counties  palatine  of  Chester,  Lancaster  and  Durham, 
or  any  inferior  courts  of  record  wherein  attorneys  have  been 
accustomably  admitted  and  sworn,  shall,  before  he  is 
admitted  and  enrolled  as  aforesaid,  take  and  subscribe  the 
oath  following,  instead  of  the  oath  heretofore  usually  taken 
by  the  attorneys  of  such  courts  respectively. 

"  '  I,  A.  B.  do  swear,  that  I  will  truly  and  honestly  demean 
myself  in  the  practice  of  an  attorney,  according  to  the  best 
of  my  knowledge  and  ability,  so  help  me  God.' 

"  XIV.  And  it  is  hereby  further  enacted  by  the  authority 
aforesaid.  That  every  person  who  shall,  pursuant  to  this  act, 
be  admitted  and  enrolled  to  be  a  solicitor  in  the  said  high 
court  of  chancery,  or  in  any  of  the  other  courts  of  equity 
aforesaid,  shall,  before  he  shall  be  so  admitted  and  enrolled, 
take  and  subscribe  the  oath  following,  viz. : 

"  '  I,  A.  B.  do  swear,  that  I  will  truly  and  honestly  demean 
myself  in  the  practice  of  a  solicitor,  according  to  the  best  of 
my  knowledge  and  ability,  so  help  me  God.' 

"  Remainder  of  this  statute  not  in  force.  2nd  year  of 
George  II.,  A.D.  1729."! 

*  English  Statutes  at  large,  Vol.  4,  page  654. 

t  Schley's  Digest  of  the  English  Statutes  in  force  in  the  State  of  Georgia.  Edition 
of  1826,  page  353. 


49 

In  1789,  after  Georgia  became  a  State,  the  admission  of 
attorneys  was  provided  for  in 

"  An  act  regulating  the  judiciary  departments  of  this  State," 
as  follows : 

"  LXV.  And  be  it  enacted.  That  no  person  shall  be 
allowed  to  practice  or  plead  in  any  of  the  superior  or  inferior 
courts,  until  examined  in  open  court,  and  admitted  by  one  or 
more  of  the  judges  of  the  superior  court:  Provided,  That 
the  persons  heretofore  admitted  shall  not  be  deprived  by 
this  act  from  practicing  in  either  court;  but  the  justices  may 
suspend,  and  the  judges  or  either  of  them  may  try  an  attor- 
ney for  malpractice  in  his  profession.  And  all  fines,  for- 
feitures and  penalties  imposed  by  this  or  any  other  act,  shall 
be  recovered  in  the  most  usual  or  summary  way."* 

The  Superior  Courts  of  Georgia  were  vested  with  jurisdic- 
tion both  in  law  and  in  equity,  and  as  the  same  persons  acted 
both  as  attorneys  and  solicitors  in  those  Courts,  the  oaths 
prescribed  by  the  English  statute  of  1729  were  amalgamated, 
and  the  Judges  of  the  Superior  Court  in  convention  pre- 
scribed the  following  form  as  an  oath  to  be  administered  to 
all  persons  admitted  to  practise  law: 

"  I,  A.  B.  do  solemnly  swear  [or  affirm  as  the  case  may 
be]  that  I  will  justly  and  uprightly  demean  myself  according 
to  law,  as  an  attorney,  counsellor,  and  solicitor,"  to  the  best 
of  my  knowledge  and  ability;  "  and  that  I  will  support  and 
defend  the  constitution  of  the  United  States,  and  the  consti- 
tution of  the  state  of  Georgia  —  So  help  me  God." 

*  Digest  of  the  laws  of  Georgia.     Edition  of  1801,  page  406. 


50 

For  some  time  after  Georgia  became  a  State,  attorneys 
from  other  States  were  not  admitted  to  practice  until  they 
had  resided  in  Georgia  two  years.  But  in  1795  it  was  pro- 
vided that  attorneys  at  law  who  were  citizens  of  and  had 
been  regularly  admitted  to  the  practice  of  the  Superior 
Courts  of  law  and  equity  in  other  States  should,  on  com- 
plying with  the  other  regulations  required  by  the  laws  of 
Georgia  for  the  admission  of  attorneys,  be  admitted  to  prac- 
tice without  having  resided  two  years  within  the  State  of 
Georgia. 

But  the  act  which  allowed  this  provided  specifically  that 
"  no  attorney  or  attornies  shall  be  allowed  to  practise 
in  the  courts  of  this  state,  as  aforesaid,  unless  he  or  they  do 
actually  reside  within  the  limits  of  the  same.  Provided  also. 
That  such  applicants  from  other  states,  shall  previous  to 
their  admission  in  this  state,  produce  to  the  judge  or  judges 
of  the  superior  courts  of  this  state,  a  certificate  of  his  regular 
admission  to  the  superior  courts  in  the  state  from  which  such 
applicants  may  come,  together  with  a  certificate  of  his  fair 
moral  and  professional  character,  duly  certified  under  the 
seal  of  the  state  where  he  shall  have  been  admitted,  and 
shall  also  undergo  a  strict  examination  as  to  his  professional 
abilities,  before  a  judge  or  judges  of  the  superior  court."* 

The  rules  of  Court  as  to  the  admission  of  attorneys  origi- 
nally provided  that  no  person  could  be  admitted  to  practise 
as  an  attorney  without  having  studied  a  certain  time  in  the 
office  of  some  Judge  or  practitioner  of  law  in  Georgia,  but  in 
1806  an  act  was  passed  which  provided  that  any  citizen  of 
Georgia  might  on  application  to  the  Judge  of  the  Superior 

*  Digest  of  the  laws  of  Georgia.     Edition  of  1802,  page  41, 


SI 

Court  be  admitted  to  practice  "  Provided,  such  person  shall 
produce  satisfactory  evidence  of  his  moral  rectitude,  and 
shall  undergo  an  examination  in  open  court,  upon  a  day 
assigned  for  that  purpose,  by  the  judge."  * 


*  Compilation  of  the  Laws  of  Georgia,  1800-1810.     Edition  of  1813,  page  331. 


52 


IN    MARYLAND. 

An  act  was  passed   in   Maryland   in    17 14    regulating  the 
fees  and  conduct  of  attorneys  as  follows  : 

"  And  be  it  further  Enacted  by  and  with  the 
Authority,  Advice  and  Confent  aforefaid,  That  all 
Attornies  practifing  in  the  feveral  County  Courts  of  this 
Province,  fhall  have  for  their  Fee  in  any  Caufe,  where 
the  real  Debt  fued  for,  or  the  Balance  recovered, 
exceeds  the  Sum  of  Ten  Pounds  Sterling,  or  Two 
thousand  Pounds  of  Tobacco,  the  Sum  of  Two  hun- 
dred Pounds  of  Tobacco  ;  and  that  any  Attorney  prac- 
tifmg  in  the  faid  Courts,  that  fhall  refufe  to  profecute 
or  defend  the  Caufe  of  any  Perfon  or  Perfons  making 
Application  to  him  (unlefs  before  retained)  having  the 
faid  Fee  paid,  or  fecured  to  be  paid  to  him.  or  that  fhall 
ask,  receive,  or  demand  in  any  fuch  Action,  by  any 
Colour  or  Pretext  whatfoever,  more  than  the  faid  Fee, 
fhall  forfeit  and  pay  the  Sum  of  Five  hundred  Pounds 
of  Tobacco  ;  One  Half  thereof  to  our  Sovereign  Lady 
the  Queen,  for  the  Support  of  the  Government,  the 
other  Half  to  him  or  them  that  will  fue  for  the  fame, 
to  be  recovered  by  Action  of  Debt,  Bill;  Plaint,  or 
Information,  wherein  no  Effoign,  Protection,  or  Wager 
of  Law  to  be  allowed ;  and  upon  Conviction  thereof  to 
be  fufpended  his  Practice  in  the  faid  Court,  for  and 
during  One  whole  Year."* 

The  admission  of  attorneys  was  regulated  in  Maryland  in 
171 5  by 

*  Acts  of  Assembly,  passed  in  the  Province  of  Maryland,  from  1692  to  1715,  page  83. 


S3 

"  An  Act  for  rectifying  the  ill  practices  of  attornies  of  this 
province,  and  ascertaining  fees  to  the  attorney-general, 
clerk  of  indictments,  attornies  and  practitioners  of  the 
law  in  the  courts  of  this  province,  and  for  levying  the 
same  by  way  of  execution,"  as  follows : 

Sect.  XII.  And  be  it  further  enacted,  by  the  authority, 
advice  and  consent  aforesaid,  That  from  and  after  the  end  of 
this  present  session  of  the  assembly,  no  attorney,  or  other 
person  whatsoever,  shall  practise  the  law  in  any  of  the  courts 
of  this  province,  without  being  admitted  thereto  by  the 
justices  of  the  several  courts,  who  are  hereby  empowered  to 
admit  and  suspend  them  (salvo  jure  corona;)  until  his 
majesty's  pleasure  shall  be  known  therein  ;  but  any  attorney, 
or  any  other  person  practising  the  law  in  this  province,  or 
the  Plaintiff  that  shall  sue  in  any  county  court  where  he 
does  not  reside,  shall  be  obliged  to  give  security  for  the  pay- 
ment of  all  the  officers  fees  that  shall  accrue  upon  any  suit 
by  him  to  be  commenced,  either  at  the  time  of  the  issuing 
of  the  writ  in  the  action,  or  during  the  continuance  of  the 
court  to  which  such  writ  shall  be  returned,  on  pain  of  pay- 
ing such  fees  himself,  or  suffering  his  client  to  be  nonsuited, 
in  default  of  such  security  to  be  given,  or  of  such  attorney 
signifying  his  intention  to  pay  such  fees,  any  law,  statute, 
usage,  custom,  rule  of  court,  or  order  from  any  persons  to 
the  contrary  notwithstanding. 

Sect.  XIII.  Provided  always.  That  nothing  in  this  act 
shall  extend,  or  be  construed  to  extend,  to  give  right  to  any 
courts  of  this  province  to  admit  any  attorney,  or  other 
person  practising  the  law,  to  practise  in  any  court  that 
has    been  already  refused  so  to  do  by  his  excellency,  and  his 


54 

majesty's  honourable  council,  nor  to  any  person  that  shall  not 
qualify  himself  by  taking  the  oaths  appointed  to  be  taken  by 
act  of  parliament  made  in  the  sixth  year  of  the  reign  of  her 
late  majesty,  of  pious  memory,  entitled  An  act  for  the  secur- 
ity of  her  majesty's  person  and  government,  and  of  the 
succession  to  the  crown  of  Great-Britain  in  the  protestant 
line.* 

Admission  to  practice  is  now  by  the  Court  of  Appeals 
under  statutory  provisions  and  the  oath  required  by  law  is  as 
follows : 

"  Every  attorney  or  other  practitioner  at  law  shall  in  open 
court  take  and  prescribe  the  following  oath  or  affirmation:  I 
do  solemnly  swear  (or  affirm)  that  I  will  at  all  times  demean 
myself  fairly  and  honorably  as  an  attorney  and  practitioner 
at  law ;  that  I  will  bear  true  allegiance  to  the  State  of  Mary- 
land, and  support  the  laws  and  constitution  thereof,  and  that 
I  will  bear  true  allegiance  to  the  United  States,  and  that  I 
will  support,  protect  and  defend  the  constitution,  laws  and 
government  thereof  as  the  supreme  law  of  the  land  ;  any  law 
or  ordinance  of  this  or  any  State  to  the  contrary  notwith- 
standing." 

The  conduct  of  attorneys  is  also  specifically  regulated  by 
the  following  statutory  provision  : 

"  The  judges  of  the  several  courts  of  this  State  shall 
observe  the  demeanor  of  all  attorneys  practising  the  law 
before  them,  who  shall  use  any  indecent  liberties  to  the 
lessening    the    grandeur    and    authority    of   their    respective 

*The  Laws  of  Maryland.     Edition  of  1811,  Vol.  i,  Chap.  XLVIIL,  Sects.  12,  13. 


55 

courts,  and  shall  discountenance  and  punish  the  same  accord- 
ing to  the  nature  of  the  offense,  either  by  suspending  such 
attorney  from  his  practice  perpetually,  or  for  a  time,  or  by 
fine  (at  the  discretion  of  the  court)  not  exceeding  fifty 
dollars  for  any  one  offense."  * 


*  The  Maryland  Code,  1904,  Article  X.,  pages  288-9. 


56 


IN    MASSACHUSETTS. 

It  was  many  years  after  the  Massachusetts  Bay  Colony 
was  settled  before  a  distinct  class  of  attorneys-at-law  was 
known.  It  is  said  to  have  been  doubtful  if  there  were  any 
regularly  educated  attorneys-at-law  who  practised  in  the 
Courts  of  the  Colony  at  any  time.*  The  Colonists  attempted 
to  found  a  pure  theocracy,  and  regarded  the  Bible  as  their 
statute-book,  and  the  ministers  as  their  lawyers.  But  by  the 
Body  of  Liberties,  the  Massachusetts  Magna  Charta,  of  1641, 
it  was  specially  declared  that 

"  Every  man  that  findeth  himselfe  unfit  to  plead  his 
owne  cause  in  any  Court  shall  have  Libertie  to  imploy 
any  man  against  whom  the  Court  doth  not  except,  to 
helpe  him.  Provided  he  give  him  noe  fee  or  reward  for 
his  paines."  f 

The  want  of  suitable  attorneys  to  present  the  cases  of 
parties  to  the  Courts  led  to  the  practice  of  parties  going  to 
the  magistrates  in  person  and  stating  their  cases  ex  parte. 
And  when  an  attempt  was  made  to  prevent  this  by  law,  it 
was  opposed  because  parties  would  then  be  obliged  to 
employ  lawyers  to  present  cases  in  Court.  % 

In  1649,  however,  a  law  was  passed  forbidding  such  con- 
duct under  penalties. § 

The  Colonists,  however,  were  litigious  people  and  if  they 
could    not  find    attorneys  to    present    their  cases  they  pre- 

•  Washburn,  Judicial  History  Mass.,  page  50. 
t  Body  of  Liberties,  Liberty  No.  26,  Whitmore  Reprint,  page  39. 
X  2  Winthrop's  History,  36. 

^s  Colony  Laws,  Edition  1814,  Chap.  30  [p.  87]  ;  Colonial  Laws,  Mass.,  Whitmore 
Edition,  page  34. 


57 

sented  them  themselves,  and  so  consumed  the  time  of  the 
Court  and  multiplied  its  business  that  in  1656  an  act  was 
passed   providing  that 

"  This  court,  taking  into  consideration  the  great 
charge  resting  upon  the  colony,  by  reason  of  the  many 
and  tedious  discourses  and  pleadings  in  court,  both  of 
plaintifif  and  defendant,  as  also  the  readiness  of  many  to 
prosecute  suits  in  law  for  small  matters.  It  is  therefore 
ordered,  by  this  court  and  the  authority  thereof,  that 
when  any  plaintiff  or  defendant  shall  plead,  by  himself 
or  his  Attorney,  for  a  longer  time  than  one  hour,  the 
party  that  is  sentenced  or  condemned  shall  pay  twenty 
shillings  for  every  hour  so  pleading  more  than  the  com- 
mon fees  appointed  by  the  court  for  the  entrance  of 
actions,  to  be  added  to  the  execution  for  the  use  of  the 
country."  * 

The  first  direct  regulation  of  lawyers  in  the  Colonial  Laws 
of  Massachusetts  is  found  in  an  order  by  the  General  Court 
in  1663  that  "  no  person  who  is  an  usual  and  common 
Attorney  in  any  Inferior  Court,  shall  be  admitted  to  sit  as  a 
Deputy  in  this  Court." 

This  was  because  cases  could  then  be  taken  by  appeal 
from  the  inferior  courts  to  the  General  Court,  and  it  was  not 
deemed  proper  that  a  common  attorney  in  the  inferior  court 
should  be  a  member  of  the  General  Court  which  passed 
upon  the  appeals  from  the  Court  in  which  he  practised. 

In  1673  it  was  ordered  that  any  person  might  sue  "  by 
his  lawful  Attourny  Authorized  under   his   Hand  and   Scale, 

*  Washburn,  Judicial  History  Mass.,  pages  52,  53. 


58 

and  legally  proved  to  be  his  Act  and  Deed  "  in  any  courts, 
and  in  1679,  that  a  Town  could  implead  any  person  in  a 
cause  at  law  and  choose  their  attorney  by  a  vote  without 
the  necessity  for  a  power  of  attorney  under  seal  as  in 
ordinary  cases.* 

In  1692  the  act  for  the  establishment  of  courts  in  the 
Province  of  Massachusetts  Bay,  which  was  disallowed  by  the 
Privy  Council  August  22,  1695,  provided  that  the  Justices 
of  the  several  courts  should  have  power  to  make  necessary 
rules  and  orders  for  practice  and  proceedings  therein,  that 
all  proceedings  should  be  in  the  English  tongue  and  no 
other,  and  that  every  plaintiff  or  defendant  in  any  courts 
might  "  plead  and  defend  his  own  cause  in  his  proper  per- 
son, or  with  the  assistance  of  such  other  as  he  shall  pro- 
cure, being  a  person  not  scandalous  or  otherwise  offensive  to 
the  court."  f 

In  1697  another  act  was  passed  for  the  establishing  of 
courts,  which  was  disallowed  by  the  Privy  Council  November 
24,  1698,  with  an  additional  provision  that  "  attourney's  fees 
to  be  allowed  at  the  superiour  court  of  judicature  shall  be 
twelve  shillings  and  at  the  inferiour  court  ten  shillings  and  no 
more;    and  but  one  attourney  to  be  paid  for  in  any  case."  X 

In  1699  another  act  for  the  regulating  and  directing  pro- 
ceedings in  Courts  of  Justice  was  passed,  which  was  dis- 
allowed by  the  Privy  Council  October  22,  1700.  This  act 
contained  the  same  provision  as  to   attorneys  as  the  act  of 

i697-§ 

The  Attorney's  oath  as  it  was  in  use  in  England  was  adopted 

*  Mass.  Col.  Laws,  1672-1678,  Whitmore  Ed.,  pages  41,  211,  266. 
t  Province  Laws,  1692-1714,  Vol.  L,  page  75. 
+  Province  Laws,  1692-1714,  Vol.  L,  page  287. 
§  Province  Laws,  1692-1714,  Vol.  L,  page  374. 


59 

by  the  Court  in  Massachusetts  certainly  as  early  as  July  27, 
1686.     This  appears  by  the  following  record  : 

"  At  his  Majesty's  Court  of  Pleas  and  Sessions  of  the 
Peace  holden  in  Boston  for  Suffolk  on  ye  27th  of  July 
1686  anno  RRis  Jacob!  Angl**  &c''  Secundi  Secundo. 

"  Present  —  Wm  Stoughton  Esq.  Judge; 

"  John  Pynchon,  Wait  Winthrop,  Edw''  Randolph, 
Richard  Wharton,  John  Usher,  Esqrs. 

"John  Richards,  Esq.,  Simon  Lynd,  Assistants. 

"  Benj'^  Bullivant  Esq''  being  appointed  Attorney  Gen- 
erall  Mr.  Giles  Master  Mr.  Anthony  Checkley  Mr. 
John  Watson  and  .  .  .  Capt  Nathaniel  Thomas  and 
Mr,  Christopher  Webb  being  admitted  attourneyes  had 
the  following  Oath  administered  to  them : 

"  You  shall  Swear  That  you  will  Do  no  falsehood  nor 
deceit  nor  shall  Consent  to  any  to  be  done  in  this  Court 
and  if  you  know  of  any  to  be  done  you  shall  give  knowl- 
edge thereof  to  the  Judge  of  this  Court  for  the  time 
being  or  some  other  of  his  Majestyes  Councill  or  assist- 
ants of  this  Court  that  it  may  be  reformed.  You  shall 
delay  no  man  for  Lucre  or  Malice.  You  shall  increase 
no  fees  but  be  Contented  with  such  fees  as  are  by  order 
of  Councill  or  the  Judge  of  this  Court  allowed  you,  in 
time  to  come  you  shall  plead  no  plea  nor  sue  any  suits 
unlawfully  to  hurt  any  man  but  such  as  shall  stand  with 
the  Order  of  the  Law  and  your  Conscience.  You  shall 
not  Wittingly  or  Willingly  sue  nor  procure  to  be  sued 
any  false  suits  or  give  Aid  or  Consent  to  the  same  on 
pain  of  being  expulsed  from  the  Court  for  Ever  and 
further  you  shall  use  and  Demeane  yourselves  in  the 
office  of  Attourneyes  within  the  Court  according  to  your 
Learning  and  discretion:    So  help  you  God." 


6o 


"  The  Hon.  William  Stoughton,  the  chief  presiding  judge, 
had  been  a  student  at  Oxford  prior  to  1663,  and  was  after- 
wards in  England  from  1676  to  1679,  as  agent  for  the 
Colony."* 

There  was  apparently,  however,  no  statute  with  regard  to 
the  admission  of  attorneys  at  law  to  practice  until  1701,  when 
the  following  act  was  passed  : 

"  All  attournys,  commonly  practising  in  any  of  the 
courts  of  justice  within  this  province  shall  be  under  oath, 
which  oath  shall  be  administred  to  them  by  the  clerk  in 
open  court  before  the  justices  of  the  same  at  the  time  of 
their  being  admitted  to  such  practice,  in  the  tenour  fol- 
lowing ;  that  is  to  say,  — 

"  You  shall  do  no  falsehood  nor  consent  to  any  to  be 
done  in  the  court,  and  if  you  know  of  any  to  be  done 
you  shall  give  knowledge  thereof  to  the  justices  of  the 
court,  or  some  of  them,  that  it  may  be  reformed.  You 
shall  not  wittingly  and  willingly  promote,  sue  or  procure 
to  be  sued  any  false  or  unlawful  suit,  nor  give  aid  or 
consent  to  the  same.  You  shall  delay  no  man  for  lucre 
or  malice,  but  you  shall  use  yourselfe  in  the  office  of  an 
attorney  within  the  court  according  to  the  best  of  your 
learning  and  discretion,  and  with  all  good  fidelity  as 
well  to  the  court  as  to  your  clients.      So  help  you  God. 

"  And  the  fee  to  be  allowed  for  an  attourney  in  the 
superiour  court  of  judicature  shall  be  twelve  shillings, 
and  in  the  inferiour  court  of  common  pleas  ten  shillings, 
and  no  more;  and  but  one  attourney  to  be  paid  for  in 
any  case.     And  none  but  such  as  are  allowed  and  sworn 

•Attorneys  and  their  Admission  to  the  Bar  in  Massachusetts,  H.  R.  Bailey:  p.  13. 


6i 


attourneys  as  aforesaid  shall  have  any  fee  taxed  for 
them  in  bills  of  costs,  any  law,  usage  or  custom  to  the 
contrary  in  any  wise  notwithstanding."* 

In  1785  a  further  act  was  passed  providing  that  no  person 
should  be  admitted  as  an  attorney  unless  of  good  moral 
character,  well  affected  toward  the  government  and  qualified 
for  the  office,  as  follows  : 

"  No  person  shall  be  admitted  an  Attorney  of  any 
Court  in  this  Commonwealth,  unless  he  is  a  person  of 
good  moral  character,  and  well  affected  to  the  Constitu- 
tion and  Government  of  this  Commonwealth,  and  hath 
had  opportunity  to  qualify  himself  for  the  office,  and 
hath  made  such  proficiency  as  will  render  him  useful 
therein ;  and  no  person  shall  be  admitted  to  practice  as 
an  Attorney  in  any  Court  of  Justice  within  this  State, 
until  he  shall  in  open  Court  have  taken  and  subscribed 
the  declaration  prescribed  in  the  Constitution  of  this 
Commonwealth,  and  an  oath,  in  tenor  following: 

"  '  You  solemnly  swear,  that  you  will  do  no  falsehood, 
nor  consent  to  the  doing  of  any  in  Court,  and  if  you 
know  of  an  intention  to  commit  any,  you  will  give 
knowledge  thereof  to  the  Justices  of  the  Court  or  some 
of  them,  that  it  may  be  prevented  :  you  will  not  wit- 
tingly or  willingly  promote  or  sue  any  false,  groundless, 
or  unlawful  suit,  nor  give  aid  or  consent  to  the  same; 
you  will  delay  no  man  for  lucre  or  malice;  but  you  will 
conduct  yourself  in  the  office  of  an  Attorney  within  the 
Courts,  according  to  the  best  of  your  knowledge  and 

*  Province  Laws,  1692-1714,  Vol.  1.,  page  467. 


62 


discretion,  and   with    all    good    fidelity,  as  well    to    the 
Courts  as  your  Clients. 

'  So  help  you  GOD.' 

"  And  it  is  enacted,  That  the  parties  may  plead  and 
manage  their  own  causes  personally,  or  by  the  assistance 
of  such  counsel  as  they  shall  see  fit  to  engage ;  but  the 
plaintiff  or  plaintiffs  in  any  suit,  shall  not  be  allowed  to 
manage  their  cause  by  more  than  two  Attorneys,  nor 
shall  any  defendant  be  allowed  to  employ  a  greater 
number."  * 

In  1836  it  was  provided  that  any  citizen  of  the  Common- 
wealth of  the  age  of  twenty-one  years,  and  of  good  moral 
character,  who  should  have  devoted  three  years  to  the  study 
of  law  in  the  office  of  some  attorney  within  the  State,  or  any 
person  having  such  qualifications  who  should  not  have 
studied  for  the  term  of  three  years,  but  was  recommended  by 
any  attorney  within  the  Commonwealth  to  be  examined  for 
admission  as  an  attorney,  and  upon  such  examination  by  the 
Court  should  be  found  qualified,  might  be  admitted-  to 
practise  in  the  Courts  of  the  Commonwealth. 

And  it  was  also  provided  that 

"  Every  person  admitted  as  an  attorney  shall,  in  open 
court,  take  and  subscribe  the  oaths  to  support  the  con- 
stitution of  the  United  States,  and  of  this  Common- 
wealth, and  the  oath  of  office. 

"  The  oath  of  office  shall  be  as  follows: 

"  You  solemnly  swear,  that  you  will  conduct  yourself, 

*  Laws  and  Resolves  of  Massachusetts,  1785,  Chapter  23. 


63 

in  the  ofifice  of  an  attorney,  according  to  the  best  of 
your  knowledge  and  discretion,  and  with  all  good 
fidelity,  as  well  to  the  courts  as  to  your  clients.  So 
help  you  God." 

It  was  also  provided  that  an  attorney  might  be  removed  by 
the  courts  for  deceit,  malpractice,  or  other  gross  misconduct, 
and  that  not  more  than  two  persons  for  each  party  should 
without  permission  of  the  Court  be  allowed  to  manage  any 
case  therein.* 

Why  the  original  form  of  oath  of  ofifice  was  changed  in 
this  revision  does  not  appear,  but  in  the  revision  of  the  laws 
in  i860  the  original  form  of  the  oath  of  ofifice  was  sub- 
stantially restored,  with  the  exception  of  the  clause  requiring 
the  attorney  if  he  knows  of  any  falsehood  in  Court  "  to  give 
knowledge  thereof  to  the  Judges  of  the  Court,  or  some  one 
of  them,  that  it  may  be  reformed."  And  the  oath  then 
provided  and  since  in  use  is  as  follows  : 

"  Whoever  is  admitted  as  an  attorney  shall  in  open 
court  take  and  subscribe  the  oaths  to  support  the  con- 
stitution of  the  United  States,  and  of  this  common- 
wealth, and  the  oath  of  ofifice. 

"  The  oath  of  ofifice  is  as  follows  : 

"  You  solemnly  swear  that  you  will  do  no  falsehood, 
nor  consent  to  the  doing  of  any  in  court ;  you  will  not 
wittingly  or  willingly  promote  or  sue  any  false,  ground- 
less, or  unlawful  suit,  nor  give  aid  or  consent  to  the 
same ;   you  will  delay  no  man  for  lucre  or  malice  ;   but 

*  Revised  Statutes  (1836),  Chapter  88,  Sections  19-27,  inclusive. 


64 

you  will  conduct  yourself  in  the  office  of  an  attorney 
within  the  courts,  according  to  the  best  of  your  knowl- 
edge and  discretion,  and  with  all  good  fidelity  as  well  to 
the  courts  as  your  clients.     So  help  you  God."  * 

Under  the  Act  of  1785,  the  Supreme  Court  in  March, 
1806,  and  subsequently  from  time  to  time,  established 
general  rules  for  the  admission  of  counsellors  and  attorneys, 
which  rules  were  repealed  and  new  rules  made  in  18 10. 
These  rules  required  the  applicant  for  admission  to  have 
practised  with  fidelity  and  ability  in  the  Court  of  Common 
Pleas  for  the  term  of  two  years  before  being  eligible  for 
admission  as  an  attorney  of  the  Supreme  Court.f 

The  relation  of  a  sworn  attorney  to  the  Court,  and  his 
powers  as  such  attorney,  were  considered  by  the  Supreme 
Court  of  Massachusetts  in  1847,  and  the  opinion  by  Chief 
Justice  Shaw  states  the  matter  so   fully  that  I   quote  from  it. 

The  question  raised  was  whether  an  agreement  made  by 
an  attorney  bound  a  client  who  was  ignorant  of  it,  and  who 
offered  to  show  that  the  attorney  had  not  been,  in  fact, 
counsel  in  the  case  for  some  time,  although  his  appearance 
had  not  been  withdrawn  from  the  docket.  The  Court  held 
the  agreement  binding,  saying: 

"  Nothing  is  more  important,  in  a  litigation  in  court,  than 
for  a  party  to  know  who  is  his  adversary's  accredited  agent, 
and  with  whom  he  may  safely  deal  in  that  capacity.  Hence 
the  great  need,  in  all  courts,  of  setting  apart  officers,  recog- 
nized as  attorneys,  and  determining  their  qualifications,  rights 

*  General  Statutes,  Chap.  121,  Sects.  30,  31 ;  Public  Statutes,  Chap.  159,  Sects.  35, 
36;  Revised  Laws,  Chap.  165,  Sect.  42. 

t  See  rules  March  Term,  1810,  6  Mass.  Rept.  382. 


65 

and  powers.  When,  therefore,  an  appearance  is  entered  for 
a  party,  by  a  regular  attorney,  all  parties  have  a  right,  prima 
facie,  to  regard  him  as  the  accredited  representative  of  such 
party. 

"  The  importance  of  upholding  agreements  and  conces- 
sions like  the  present,  between  attorneys  and  counsel  of  liti- 
gating parties,  is  greater  than  it  might  seem  at  first  blush, 
and  is  enhanced  by  our  present  practice.  In  most  cases  of 
controverted  facts,  many  facts  are  embraced  in  the  issue, 
which  are  not  really  in  dispute  between  the  parties ;  but  each 
must  be  prepared  to  prove  all  the  facts  necessary  to  his  own 
case,  unless  he  can  previously  obtain  a  concession  from  the 
adverse  party,  in  a  form  which  he  can  rely  upon,  at  the  trial. 
It  is,  therefore,  a  wise,  useful  and  beneficial  practice,  resorted 
to  by  those  who  are  most  careful  in  preparing  causes  for 
trial,  and  a  practice  well  deserving  to  be  encouraged  by  the 
courts,  for  the  parties,  by  their  attorneys,  to  obtain  and  give 
mutual  concessions,  in  writing,  of  all  the  material  facts,  not 
intended  to  be  controverted,  and  so  narrow  the  litigation  to 
the  precise  matters  in  controversy.  It  saves  expense,  avoids 
surprise  and  delay,  and  often  prevents  the  loss  of  a  good 
cause,  by  an  unexpected  call  for  proof,  which  could  easily 
have  been  obtained,  if  it  had  been  anticipated  that  such  fact 
would  be  called  in  question.  This  practice  of  admitting 
facts  is  the  more  necessary,  since  the  disuse  of  special  plead- 
ing, which  was  designed,  and  to  some  extent  had  the  effect, 
to  narrow  the  issue  on  record  to  some  one  or  a  few  questions 
of  fact.  This  consideration  renders  it  important  to  hold,  that 
a  litigant  party  shall  not  be  permitted  to  deny  the  authority 
of  his  attorney  of  record,  whilst  he  stands  as  such  on  the 
docket.      He  may  revoke  his  attorney's  authority,  and  give 


66 

notice  of  it  to  the  court  and  to  the  adverse  party;  but  whilst 
he  so  stands,  the  party  must  be  bound  by  the  acts  of  the 
attorney. 

"  It  was  stated  in  the  argument  for  the  defendant,  that 
though  an  attorney  may  bind  his  chent,  it  is  only  by  acts 
done  in  court.  We  cannot  admit  the  correctness  of  this 
view.  Many  things  may  and  ought  to  be  done  out  of  court, 
and  in  vacation,  with  a  view  to  the  proper  conduct  of  the 
cause.  All  acts  to  be  done  by  an  attorney,  without  special 
directions,  must  be  acts  within  the  scope  of  his  official 
authority  and  duty,  in  the  proper  conduct  and  management 
of  the  cause  in  which  he  is  engaged  ;  and  this  is  the  proper 
limit  of  his  authority.  "  * 

It  is  interesting  to  note  as  a  matter  of  history  that  in 
Massachusetts  barristers  \vere  called  by  the  Court,  and  the 
distinction  between  barristers  and  attorneys  maintained  for  a 
long  time.  In  1768  there  were  twenty-five  barristers  in  the 
Commonwealth  and  thirty-one  more  were  called  after  that 
time.  At  that  time  only  those  who  had  been  admitted  and 
sworn  as  attorneys  in  the  highest  Court  and  had  practised 
there  for  two  years  were  eligible  to  be  called  as  barristers. 

In  1 78 1  the  Supreme  Judicial  Court,  which  was  estab- 
lished by  the  Constitution  of  1780,  made  the  following  order, 
which  is  upon  its  records : 

"  Whereas  Learning  and  literary  accomplishments  are 
necessary  as  well  to  promote  the  Happiness  as  to  pre- 
serve the  freedom  of  the  People,  and  the  Learning  of 
the  Law  when  duly  encouraged  and  rightly  directed, 
being    as  well    peculiarly  subservient  to  the  great  and 

*  Lewis  V.  Sumner,  54  Mass.  (13  Met.)  271-273. 


67 

good  Purpose  aforesaid  as  promotive  of  public  and 
private  Justice;  and  this  Court  being  at  all  times  ready 
to  bestow  peculiar  marks  of  approbation  upon  those 
Gentlemen  of  the  Bar  who  by  a  close  application  to  the 
Study  of  the  Science  they  profess,  by  a  mode  of  Con- 
duct which  gives  a  Conviction  of  the  Rectitude  of  their 
minds,  and  a  fairness  of  Practice  that  does  Honor  to 
the  Profession  of  the  Law,  shall  distinguish  themselves 
as  men  of  Science,  Honor  and  Integrity: 

"  Do  Order  that  no  Gentleman  shall  be  called  to  the 
Degree  of  Barrister  until  he  shall  merit  the  same  ^y  his 
conspicuous  Learning,  Ability  and  Honesty;  and  that 
the  Court  will  of  their  own  mere  Motion  call  to  the  Bar 
such  Persons  as  shall  render  themselves  worthy  as  afore- 
said ;  and  that  the  manner  of  calling  Barristers  shall  be 
as  follows :  The  Gentleman  who  shall  be  a  Candidate 
shall  stand  within  the  Bar.  The  Chief  Justice  or  in  his 
absence  the  Senior  Justice  shall  in  the  name  of  the 
Court  repeat  to  him  the  Qualifications  necessary  for  a 
Barrister  of  the  Law  ;  shall  let  him  know  that  it  is  a 
Conviction  in  the  Mind  of  the  Court  of  his  being 
possessed  of  these  Qualifications  that  induces  them  to 
confer  this  Honor  upon  him;  and  shall  solemnly  charge 
him  so  to  conduct  himself  as  to  be  of  singular  Service 
to  his  Country  by  exerting  his  abilities  for  the  Defence 
of  her  Constitutional  Freedom  :  and  so  to  demean  him- 
self as  to  do  Honor  to  the  Court  and  Bar." 

In  1783  an  order  was  entered  by  the  Court  prescribing 
the  form  of  writ  to  be  issued  to  call  a  person  to  be  a  bar- 
rister, as  follows  : 


68 


"  Commonwealth  of  Massachusetts 

"To  A.  B.,  Esquire,  of Greeting:   VVe 

Well  knowing  your  Ability,  Learning  and  Integrity 
Command  you  that  you  appear  before  our  Justices  of 
our    Supreme    Judicial    Court    next    to     be    holden    at 

in    and    for    our    county    of on    the 

Tuesday  of next  then  and  there 

in  our  said  Court  to  take  upon  you  the  State  and  degree 
of  a  Barrister  at  Law.     Hereof  Fail  not. 

"  Witness Esq.  our  Chief  Justice 

at  Boston  the day  of in  the  year 

of  our  Lord and  in  the  year  of  our  Inde- 
pendence  

By  Order  of  the  Court. 

Clerk." 

The  Court  further  ordered  that  the  writ  should  be 
engrossed  on  parchment  and  delivered  twenty  days  before 
the  session  of  the  Court  by  the  sheriff  of  the  proper  county 
to  the  person  to  whom  directed,  and  that  the  writ  being 
produced  in  Court  by  the  barrister,  and  there  read  by  the 
Clerk,  and  proper  certificate  thereon  made,  should  be  rede- 
livered to  the  barrister  and  kept  as  a  voucher  of  his  being 
legally  called  ;  and  that  barristers  should  take  rank  according 
to  the  date  of  their  respective  writs. 


69 


IN     NEW     HAMPSHIRE. 

The  first  complete  form  of  an  attorney's  oath  which  I 
have  found  in  the  English  Colonies  in  America  was  that  pre- 
scribed by  an  order  of  the  President  and  Council  of  his 
Majesty's  Territory  and  Dominion  in  America,  in  "  An 
order  for  the  holding  of  Courts  and  Execution  of  Justice," 
passed  in  1686  in  the  old  Town  House  in  Boston,  when 
Joseph  Dudley  was  President.  This  act  was  passed  in  sec- 
tions on  different  days. 

Section  3,  passed  May  28,  1686,  provided  that 

"  Such  as  from  time  to  time  shall  be  allowed  and 
sworn  Attoiirnyes  by  the  Council  and  County  Courts 
(and  they  only  to  receive  Fees  ?ir\d  plead  in  any  of  His 
Majesties  Courts),  and  no  other  presume  to  offer  Plead- 
ing, save  that  every  man  is  allowed  to  plead  his  own 
Case." 

On  July  26,  1686,  it  was  also  ordered  as  follows: 

"  That  the  Oath  following  be  administred  to  the 
Attourneys  before  they  be  admitted  Attourneyes  in 
Court. 

"  You  shall  do  no  falshood  nor  deceit,  nor  consent  to 
any  to  be  done  in  this  Court,  and  if  You  know  of  any 
to  be  done  You  shall  give  knowledge  thereof  to  the 
Judge  of  this  Court  for  the  time  being  or  Some  other 
of  his  Ma'tys  Councill,  or  Assistants  of  this  Court  that 
it  may  be  reformed  You  shall  delay  no  man  for  lucre 
or  malice.  You  shall  encrease  no  fees  but  be  contented 
with  Such  ffees  as  are  by  Order  of  Councill  or  the  Judge 


JO 

of  this  Court  allowed  You,  or  that  may  be  allowed 
You  in  time  to  Come.  You  shall  plead  no  Plea,  nor  sue 
any  Suits  unlawfully  to  hurt  any  man,  but  such  as  shall 
stand  w'th  Order  of  the  Law,  and  Your  Conscience, 
You  shall  not  wittingly  or  willingly  sue,  nor  Pcure  to  be 
Sued  any  false  Suite,  nor  give  aid,  or  consent  to  the 
Same  on  paine  of  being  expulsed  from  the  Court  for 
ever,  And  further  You  shall  use  and  demean  Your  Selfe 
in  Your  office  of  an  Attorny  within  the  Court  According 
to  Your  Learning  &  Discretion.     So  help  You  God."  * 

This  oath  was  adopted  by  the  Province  of  New  Hamp- 
shire in  1 7 14  by 

"  An  Act  relating  to  Attornies  "  as  follows: 

Be  it  Enacted  by  His  Excellency  the  Governor,  Council, 
and  Representatives,  convened  in  General  Assembly,  and 
by  the  Authority  of  the  same.  That  the  plaintiff  or  defend- 
ant in  any  suit  may  plead  or  defend  his  cause  by  himself 
in  his  proper  person,  or  with  the  assistance  of  such  other 
person  as  he  shall  procure. 

And  be  it  further  Enacted,  That  all  attornies  commonly 
practicing  in  any  of  the  courts  of  justice  within  this  prov- 
ince, shall  be  under  oath,  which  oath  shall  be  administered 
to  them  by  the  clerk  in  open  court,  before  the  justices  of 
the  same,  at  the  time  of  their  being  admitted  to  such  practice 
in  the  tenor  following.     That  is  to  say. 

You  shall  do  no  falsehood,  nor  consent  to  any  to  be  done 
in  the  court,  and  if  you  know  of  any  to  be  done,  you   shall 

*Laws  of  New  Hampshire,  Province  Period,  1679- 1702,  Vol.  I.,  pages  105,  123. 


71 

give  knowledge  thereof  to  the  justices  of  the  court,  or  some 
of  them,  that  it  may  be  reformed.  You  shall  not  wittingly 
or  willingly  promote,  sue  or  procure  to  be  sued  any  false  or 
unlawful  suit,  nor  give  aid  or  consent  to  the  same.  You 
shall  delay  no  man  for  lucre,  or  malice,  but  you  shall  use 
yourself  in  the  office  of  an  attorney  within  the  court 
according  to  the  best  of  your  learning  and  discretion,  and 
with  all  good  fidelity,  as  well  to  the  court  as  your  client. 
So  help  you  God. 

And  the  fee  to  be  allowed  for  an  attorney  in  the  supe- 
rior court  of  judicature  shall  be  twelve  shillings,  and  in 
the  inferior  court  of  common  pleas  ten  shillings,  and  no 
more ;  and  but  one  attorney  to  be  paid  for  in  any  case ;  and 
none  but  such  as  are  allowed  and  sworn  attorneys,  as 
aforesaid,  shall  have  any  fee  taxed  for  them  in  bills  of 
cost:  Any  law,  usage,  or  custom  to  the  contrary  in  any 
wise  notwithstanding.* 

February  17,  1791,  after  New  Hampshire  became  a  State, 
the  oath  was  adopted  by  the  following  act: 

"  An  Act  Relating  to  Attornies. 

"  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives in  General-Court  convened,  That  the  plaintiff  or 
defendant,  in  any  cause,  prosecution  or  suit,  being  a  citizen 
of  this  State,  may  appear,  plead,  pursue  or  defend,  in  his 
proper  person,  or  by  such  other  citizen  of  this  State,  being 
of  good  and  reputable  character,  and   behavior,  as  he  may 


*Acts  and  Laws  of  His  Majesty's  Province  of  New-Hampshire  in  New  England 
(1771),  Cliapter  XXXVU.,  page  50. 


72 

engage  and  employ,  whether  the  person  so  employed  be 
admitted  as  an  attorney  at  law,  or  not. 

"And  be  it  further  enacted,  That  all  attornies  commonly 
practicing  in  any  of  the  courts  of  justice  within  this  State, 
shall  be  under  oath,  which  oath  shall  be  administered  to 
them  by  the  clerk,  in  open  court,  before  the  justices  of  the 
same,  at  the  time  of  their  being  admitted  to  such  practice,  in 
the  tenor  following  —  That  is  to  say, 

"  YOU  solemnly  swear,  that  you  will  do  no  falsehood,  nor 
consent  that  any  be  done  in  court,  and  if  you  know  of  any, 
that  you  will  give  knowledge  thereof  to  the  justices  of  the 
court,  or  some  of  them,  that  it  may  be  reformed  ;  that  you 
will  not  wittingly  or  willingly  promote,  sue  or  procure  to  be 
sued,  any  false  or  unlawful  suit,  nor  consent  to  the  same; 
you  shall  delay  no  man  for  lucre  or  malice,  but  shall  act  in 
the  office  of  an  attorney  within  the  court  according  to  the 
best  of  your  learning  and  discretion,  and  with  all  good 
fidelity  as  well  to  the  court  as  your  client.  So  help  you 
GOD. 

"  And  but  one  attorney  to  be  taxed  in  any  bill  of  cost,  any 
law,  usage  or  custom  to  the  contrary  notwithstanding." 

The  form  now  in  use  is  as  follows: 

"  Every  attorney  admitted  to  practice  shall  take  and  sub- 
scribe, in  open  court,  the  oaths  to  support  the  constitution  of 
this  state  and  of  the  United  States,  and  the  oath  of  office  in 
the  following  form: 

"  You  solemnly  swear  that  you  will  do  no  falsehood,  nor 
consent  that  any  be  done  in  the  court,  and  if  you  know  of 
any,  that  you  will   give  knowledge  thereof  to  the  justices  of 


73 

the  court,  or  some  of  them,  that  it  may  be  reformed  ;  that 
you  will  not  wittingly  or  willingly  promote,  sue,  or  procure 
to  be  sued  any  false  or  unlawful  suit,  nor  consent  to  the 
same ;  that  you  will  delay  no  man  for  lucre  or  malice,  and 
will  act  in  the  office  of  an  attorney  within  the  court  accord- 
ing to  the  best  of  your  learning  and  discretion,  and  with  all 
good  fidelity  as  well  to  the  Court  as  your  client.  So  help 
you  God."  * 


*  Public  Statutes,  N.H.,  Chap.  213. 


74 


IN   NEW   JERSEY. 

The  tirst  reference  to  attorneys  in  the  laws  of  New  Jersey 
was  contained  (14th  April,  1698)  in 

"Further  Orders  and  Instructions  to  Jeremiah  Basse,  Esquire, 
Governor  of  the  Province  of  East  New-Jersey,  in  America, 
sent  from  London,  by  the  Committee  of  the  Proprietors 
tliere  to  be  observed  by  the  said  Governor,  viz.  : 

"  That  you  consent  to  pass  a  Law  or  Act  of  Assembly 
that  no  Attorney  or  other  Person  be  suffered  to  Practice 
or  plead  for  Fee  or  Hire,  in  any  Court  of  Judicature,  in 
any  Suit  or  Cause  or  Process  in  Law  whatsoever,  but 
such  as  are  admitted  to  Practice  by  Licence  of  the 
Governor  of  the  Province  for  the  Time  being."  * 

In  1799,  after  New  Jersey  became  a  State,  it  was  provided 
that  every  person  of  full  age  and  sound  memory  might 
appear  and  prosecute  or  defend  any  action  in  Court  in 
person,  "  or  by  his  solicitor  in  chancery  or  attorney-at-law," 
but  that  no  person,  except  in  his  own  case  or  in  the  case  of 
an  infant,  should  appear  and  prosecute  or  defend  any  action 
but  "  such  as  is  a  licensed  solicitor  or  attorney-at-law  who 
shall  be  under  the  direction  of  the  Court  in  which  he  acts." 

And  also 

"  That  if  any  counsellor,  solicitor  or  attorney  at  law 
shall  be  guilty  of  malepractice  in  any  of  the  said  courts, 
he  shall  be  put  out  of  the  roll,  and  never  after  be  per- 

*The  Grants,  Concessions,  and  Original  Constitutions  of  the  Province  of  New- 
Jersey,  etc.,  page  223. 


75 

mitted  to  act  or  practice  as  a  counsellor,  solicitor  or 
attorney  at  law,  unless  he  shall  obtain  a  new  license  and 
be  again  enrolled  in  due  form  of  law." 

The  lawyer's  oath,  as    prescribed    in    1799,   was   first,  the 
oath  of  allegiance : 

"  I, do  sincerely  profess  and 

swear,  that  I  do  and  will  bear  true  faith  and  allegiance 
to  the  government  established  in  this  state,  under  the 
authority  of  the  people.     So  help  me  God." 

and  second, 

"  I, do  solemnly    promise 

and  swear,  that  I  will  faithfully  and  honestly  demean 
myself  in  the  practice  of  an  attorney  (or  of  a  counsellor 
or  solicitor,  as  the  case  may  be)  and  will  execute  my 
office  according  to  the  best  of  my  abilities  and  under- 
standing.    So  help  me  God." 

This  oath  of  office  was  required  to  be  taken  and  sub- 
scribed in  open  Court.* 

The  degree  of  Sergeant-at-law  was  recognized  in  New 
Jersey,  and  appointments  made  by  rule  of  the  Supreme 
Court  in  May,  1755.  In  1763,  however,  it  was  ordered  by 
the  Court  "  that  no  person  for  the  future  shall  practice  as  a 
Sergeant  in  this  Court  but  those  that  are  recommended  by 
the  Judges  to  the  Governor  for  the  time  being,  and  duly 
called  up  by  writ  and  sworn  agreeably  to  the  practice  of 
England." 

*  Laws  of  New  Jersey  (1800),  pages  355,  377. 


ye 

In  May,  1764,  this  rule  was  vacated,  the  number  of 
Sergeants  was  subsequently  fixed  at  twelve,  and  for  a  time 
examinations  for  admission  to  the  Bar  were  conducted  exclu- 
sivel}'  by  the  Sergeants.  In  1839  the  degree  of  Sergeant- 
at-law  was  abolished.*  Lawyers  were  undoubtedly  licensed 
and  sworn  by  the  Governor,  in  the  Province  of  New  Jersey, 
according  to  the  English  practice,  and  they  are  now  licensed 
by  the  Governor  upon  recommendation  by  the  Supreme 
Court  after  examination,  which  is  provided  for  by  rules  of 
Court. 

The  rules  of  the  Supreme  Court  require  that  an  attorney 
or  counsellor  shall  not  be  admitted  unless  he  take  the  oath 
to  support  the  Constitution  of  the  United  States  and  the 
oath  of  allegiance  to  the  State,  as  well  as  the  oath  of  office 
prescribed  by  law.  The  oath  of  office  prescribed  by  law  at 
the  present  time  is  as  follows  : 

"  That  every  counselor,  solicitor  or  attorney-at-law,  shall, 
before  he  be  permitted  to  practice  in  any  court  of  this  state, 
take  and  subscribe  in  open  court,  the  following  oath,  to  wit: 

I, ,  do  solemnly  promise  and 

swear,  that  I  will  faithfully  and  honestly  demean  myself 
in  the  practice  of  an  attorney  (or  of  a  counselor  or 
solicitor,  as  the  case  may  be),  and  will  execute  my 
office  according  to  the  best  of  my  abilities  and  under- 
standing.    So  help  me  God." 

The  conduct  of  attorneys  is  specifically  regulated  by  the 
following  statutory  provision  the  penalty  in  which  is  like 
that  of  the  ancient  English  statute  : 

*The  Supreme  Court  of  the  States  and  Provinces  of  North  America  (Bell.),  Vol.  I., 
Series  2,  page  66. 


77 

"  If  any  counselor,  solicitor  or  attorney-at-law  shall  be 
guilty  of  malpractice  in  any  of  the  courts,  he  shall  be  put 
out  of  the  roll,  and  never  after  be  permitted  to  practice  as  a 
counselor,  solicitor,  or  attorney-at-law,  unless  he  shall  obtain 
a  new  license,  and  be  again  enrolled  in  due  form  of  law."  * 

There  is,  however,  no  statute  authorizing  the  Court  to 
examine  or  the  Governor  to  license  persons  as  lawyers. 
Both  rest  upon  immemorial  custom.  An  interesting  descrip- 
tion of  this  matter  is  found  in  the  case  of  Branch  et  a/.,  70 
N.J.  Law,  where  the  Court  say: 

"The  Supreme  Court  of  New  Jersey  neither  licenses 
attorneys-at-law  nor  admits  them  to  practice.  They  are 
invested  with  that  privilege  by  letters-patent,  issued  by  the 
governor  of  the  state  when  he  is  assured  that  such  licensees 
are  possessed  of  the  proper  qualifications  by  a  recommenda- 
tion to  that  effect  from  the  Supreme  Court,  based  upon  an 
examination  made  by  it  or  under  its  supervision,  which  ex- 
amination so  made  or  supervised  has,  from  the  earliest 
periods,  been  a  distinctive  attribute  of  the  Supreme  Court, 
and  as  such  existed  in  unqualified  form  at  the  time  the 
constitution  of  1 844  was  adopted.  The  power  of  the  Supreme 
Court  thus  to  examine,  for  itself,  those  whom,  it  recom- 
mended for  license,  was  therefore  one  of  those  '  powers ' 
which  in  addition  to  its  'jurisdiction,'  it  was  by  that  instru- 
ment authorized  to  '  continue.'  " 


*  General  Statutes  of  New  Jersey,  1896,  Vol.  2,  pages  2330-2534. 


78 


IN   NEW   YORK. 

The  first  legislation  as  to  lawyers  in  the  Province  of  New 
York  was : 

"  An   Act    for    Regulating    the   Retaining  Attorneys  at 
Law,"  passed  October  22,  1695  • 

Whereas  the  Number  of  Attorneys  at  Law  that  prac- 
tice at  the  Barr  in  this  Province  are  but  few  and  that 
many  persons  Retain  most  of  them  on  one  side  to  the 
great  prejudice  and  discouragement  of  others  that  have 
or  may  have  suits  at  Law  to  the  end  therefore  that  Jus- 
tice ma}'  be  Equally  administred  and  no  Room  Left  for 
Complaint  be  it  Enacted  by  the  Governour  and  Councill 
and  Representatives  Convened  in  Generall  Assem-bly  and 
by  the  Authority  of  the  same  that  from  and  after  the 
publication  hereof  that  no  person  or  persons  That  shall 
have  any  suit  at  Law  in  any  of  the  Courts  of  Record 
Within  this  Province  shall  Retain  more  then  two  Attor- 
neys at  Law  for  the  prosecution  or  management  of  any 
such  Suit  or  process  at  Law  that  they  shall  have  and  if 
they  Retain  any  more  it  shall  be  Lawful  for  the  Justices 
of  the  bench  where  the  Suit  is  Depending  to  order  all 
such  Attorneys  as  shall  be  Retained  more  than  two  as 
aforesaid  to  plead  for  the  other  side  Without  Returning 
the  fee  Received  any  thing  Contained  in  this  or  any 
other  Act  To  the  Contrary  hereof  in  any  wise  Notwith- 
standing, provided  That  this  Act  Nor  any  thing  Con- 
tained therein  shall  Continue  in  force  any  Longer  then 
two  years  After  the  publication  hereof.* 

*  Colonial  laws  of  New  York,  from  1664  to  the  Revolution.    Edition  of  1894,  Vol. 
I-  page  351. 


79 

I  think  attorneys  were  admitted  and  sworn  in  New  York 
until  after  the  Revolution  in  the  manner  required  by  the 
English  statutes  and  practice  of  the  Courts.  After  New 
York  became  a  State,  however,  their  admission  was  regulated 
by 

"  An  ACT  concerning  Counsellors,  Attornies,  Solicitors,  Advo- 
cates, and  Proctors  of  the  several  Courts  in  this  State, 
Passed  20th  February,  1787."  This  Act  is  so  specific  in 
its  provisions  and  throws  so  much  light  on  the  practice 
of  the  law  at  that  time  that  I  give  it  in  full  as  follows : 

"  I.  Be  it  Enacted  by  the  People  of  the  State  of  New- 
York,  represented  in  Senate  and  Assembly,  and  it  is  hereby 
Enacted  by  the  Authority  of  the  same,  That  it  shall  be  law- 
ful for  all  and  every  Person  and  Persons  whomsoever,  of  full 
Age  and  sound  Memory,  other  than  Defendants  in  Cases 
where  corporal  Punishments  may  be  inflicted,  to  make  and 
appear  by  his,  her  or  their  Attorney  or  Attornies,  in  all  and 
every  or  any  Suit,  Action  or  Plea,  real  or  personal,  moved 
or  to  be  moved,  by  or  against  him,  her  or  them,  in  any 
Court  in  this  State;  and  to  commence,  pursue,  prosecute 
or  defend  the  same  Suit,  Action  or  Plea,  in  Person,  or  by 
his,  her  or  their  Attorney  or  Attornies. 

"  II.  And  be  it  further  Enacted  by  the  Authority  afore- 
said, That  all  Warrants  of  Attorney  of  the  Parties,  or  of  any 
or  either  of  them,  in  all  Suits,  Actions  and  Pleas,  in  any 
Court  of  Record,  shall  be  taken  before  the  Judges  or  Justices 
of  the  respective  Courts  in  which  the  same  Suit,  Action  or 
Plea  is  or  shall  be  depending,  or  one  of  them,  or  before  the 
Chancellors  of  this  State  for  the  Time  being,  who  shall  cer- 
tify and  send  the  Warrants  of  Attorney  before  him  taken,  to 


8o 


the  Judges  or  Justices  of  the  Court  in  which  the  Suit,  Action 
or  Plea  is  or  shall  be  depending.  And  further,  That  such  as 
cannot  conveniently  come  before  any  or  either  of  the  Judges 
or  Justices  of  the  Court  in  which  such  Suit,  Action  or  Plea 
is  or  may  be  depending,  or  before  the  Chancellor,  to  make 
his,  her  or  their  Attorney  or  Attornies  in  the  same  Suit, 
Action  or  Plea,  may  appear  before  such  Judges,  Justices  or 
Chancellor,  or  either  of  them,  by  his,  her  or  their  Agent  or 
Attorney,  having  sufficient  Authority  therefore  in  Writing, 
by  Letter  of  Attorney  or  otherwise,  from  the  Person  or  Per- 
sons in  whose  Behalf  such  Suit,  Action  or  Plea  is  or  may  be 
depending;  and  in  Cases  where  it  may  be  necessary,  shall 
have  a  Writ  out  of  the  Chancery  to  some  sufficient  Man,  to 
receive  his,  her  or  their  Warrant  of  Attorney  in  the  same 
Suit,  Action  or  Plea ;  and  in  all  Cases  where  any  Infant  is  or 
shall  be  entitled  to  any  Suit  or  Action,  some  or  one  of  the 
next  Friends  of  such  Infant  shall  be  admitted,  in  Manner 
aforesaid,  to  sue  and  prosecute  for  such  Infant.  And  if  any 
Infant  is  or  shall  be  impleaded,  a  Guardian  shall  be  appointed, 
in  Manner  aforesaid,  for  such  Infant,  to  defend  the  same 
Suit,  Action  or  Plea,  for  the  same  Infant. 

"  III.  And  be  it  further  Enacted  by  the  Authority  afore- 
said, That  no  Person  shall  henceforth  be  admitted  a  Coun- 
sellor, Attorney,  Solicitor,  Advocate  or  Proctor,  in  any 
Court,  but  such  as  have  been  brought  up  in  the  same  Court, 
or  are  otherwise  well  practised  in  soliciting  Causes,  and  have 
been  found,  by  their  Dealings,  to  be  skilful,  and  of  honest 
Disposition ;  and  that  every  Person  hereafter  to  be  admitted 
a  Counsellor,  Attorney,  Solicitor,  Advocate  or  Proctor  of  any 
Court,  shall,  before  such  Admission,  be  examined  by  the 
Judges  or  Justices  of  the  same  Court,  and  such  only  as  shall 


be  found  virtuous  and  of  good  Fame,  and  of  sufficient  Learn- 
ing and  Ability,  shall  be  admitted,  and  their  Names  shall  be 
put  in  a  Roll  or  Book  to  be  kept  in  each  Court  respectively, 
for  that  Purpose;  and  each  and  every  Person  so  admitted 
shall,  upon  such  Admission,  in  open  Court,  take  and  sub- 
scribe an  Oath  of  Office  in  the  Words  following: 

'  I ,  do    swear,  That  I  will    truly  and 

honestly  demean  myself  in  the  Practice  of  an  Attorney 
(or  of  a  Counsellor,  Solicitor,  or  Proctor,  or  of  an 
Advocate,  as  the  Case  may  be)  according  to  the  Best 
of  my  Knowledge  and  Ability.' 

"  IV.  And  be  it  further  Enacted,  by  the  Authority  afore- 
said, That  if  any  Counsellor,  Attorney,  Solicitor,  Advocate 
or  Proctor  of  any  Court,  heretofore  admitted,  or  hereafter  to 
be  admitted,  shall  be  found  notoriously  in  Default  of  Record 
or  otherwise,  he  shall  be  put  out  of  the  Roll,  and  never  after 
be  received  to  act  as  a  Counsellor,  Attorney,  Solicitor, 
Advocate  or  Proctor,  in  any  Court.  And  further.  That  when 
any  Attorney  shall  die,  or  cease  to  act,  or  be  put  out  of 
the  Roll  of  Attornies,  the  Persons  for  whom  he  was  Attor- 
ney, shall  be  warned  to  appoint  another  Attorney  in  his 
Place,  so  that  in  the  mean  Time  no  Damage  or  Prejudice 
may  come  to  the  Party. 

"  V.  And  be  it  further  Enacted  by  the  Authority  afore- 
said. That  if  any  Counsellor,  Attorney,  Solicitor,  Pleader, 
Advocate,  Proctor,  or  other,  do  any  Manner  of  Deceit  or 
Collusion,  in  any  Court  of  Justice,  or  consent  unto  it  in 
Deceit  of  the  Court,  or  to  beguile  the  Court  or  the  Party, 
and  thereof  be  convicted,  he  shall  be  punished  by  Fine  and 


82 


Imprisonment,  and  shall   moreover  pay  to  the  Party  grieved, 
treble  Damages,  and  Costs  of  Suit. 

"  VI.  And  be  it  further  Enacted  by  the  Authority  afore- 
said, That  if  any  Attorney,  Solicitor  or  Proctor,  do  or  shall 
wilfully  delay  his  Client's  Suit,  to  work  his  own  gain,  or  wil- 
fully demand,  by  his  Bill,  any  Sums  of  Money  or  Allowance 
for  or  upon  Account  of  an}-  Money  which  he  hath  not  laid 
out  or  disbursed,  or  become  answerable  for,  in  every  such 
Case  the  Party  grieved  shall  have  his  or  her  Action  against 
such  Attorney,  Solicitor  or  Proctor,  and  recover  therein 
treble  Damages  and  Costs  of  Suit:  And  such  Attorney, 
Solicitor  or  Proctor,  shall  thereupon  be  put  out  of  the  Roll 
and  be  discharged  from  thenceforth  from  being  an  Attorney, 
Solicitor  or  Proctor  any  more. 

"  VII.  And  be  it  further  Enacted  by  the  Authority  afore- 
said. That  no  Attorney,  Solicitor  or  Proctor,  shall  commence 
any  Suit  or  Action  for  Recovery  of  any  Fees,  Charges  or 
Disbursements,  until  eight  Days  after  he  shall  have  delivered 
to  the  Party  to  be  charged  therewith,  or  left  for  him  or  her, 
at  his  or  her  Dwelling-House,  or  last  Place  of  Abode,  a  Bill 
of  such  Fees,  Charges  and  Disbursements,  written  in  a 
common  legible  Hand,  in  the  English  Tongue,  (except  Law 
Terms,  and  the  Names  of  Writs,  and  in  Words  at  length, 
except  Times  and  Sums,  and  such  Abbreviations  as  are  com- 
monly used  in  the  English  Language)  subscribed  with  the 
proper  Hand  of  such  Attorney,  Solicitor  or  Proctor. 

"VIII.  And  be  it  further  Enacted  by  the  Authority 
aforesaid,  That  the  Attorney  for  the  Plaintiff  or  Demandant, 
in  every  Action  or  Suit,  shall  file  his  Warrant  of  Attorney 
with  the  proper  Officer  of  the  Court  where  the  Cause  is  or 
shall    be    depending,  the    same    Term   he   declares,  and  the 


83 

Attorney  for  the  Defendant  or  Tenant  shall  file  his  Warrant 
of  Attorney  as  aforesaid,  the  same  Term  he  appears,  upon 
Pain  to  forfeit,  for  every  Neglect  or  Offence,  the  Sum  of  Ten 
Pounds,  to  be  recovered  by  Action  of  Debt,  Bill,  Plaint  or 
Information  ;  the  one  Moiety  thereof  to  the  Use  of  the  People 
of  this  State,  and  the  other  Moiety  thereof  to  the  Officer  to 
whom  or  in  whose  Office  the  same  Warrant  should  be  deliv- 
ered, entered  or  filed  ;  and  also  to  make  Satisfaction  to  the 
Party  grieved,  according  to  the  Discretion  of  the  Court 
where  any  such  Default  or  Neglect  shall  be  had  or  made. 

"  IX.  And  be  it  further  Enacted  by  the  Authority  afore- 
said, That  every  Process  for  arresting,  and  every  Writ  of 
Execution,  or  some  Label  annexed,  shall,  before  Service  or 
Execution  thereof,  be  subscribed  or  indorsed  with  the  Name 
of  the  Attorney  or  Person  by  whom  the  same  Process  or  Writ 
of  Execution  shall  be  sued  forth. 

"  X.  And  be  it  further  Enacted  by  the  Authority  afore- 
said, That  if  any  Attorney  of  any  Court  of  Record,  shall 
knowingly  and  willingly  permit  or  suffer  any  other  Person  to 
sue  out  any  Writ,  or  commence,  prosecute  or  defend  any 
Action  or  Suit,  in  his  Name,  and  be  thereof  convicted,  he 
shall  be  put  out  of  the  Roll  of  Attornies,  and  from  the  Time 
of  such  Conviction,  be  disabled  to  practice  in  such  Court. 
And  further.  That  as  well  the  same  Attorney  as  he  who  shall 
sue  out  any  such  Writ,  or  commence,  prosecute  or  defend 
any  such  Action  or  Suit,  shall  each  of  them  forfeit,  for  every 
such  Offence,  the  Sum  of  Twenty  Pounds;  the  one  Moiety 
thereof  to  the  People  of  this  State,  and  the  other  Moiety 
thereof  to  the  Party  grieved  ;  to  be  recovered  by  Action  of 
Debt,  Bill,  Plaint  or  Information,  in  any  Court  of  Record. 

"  XI.     And  be  it  further  Enacted  by  the  Authority  afore- 


84 

said,  That  from  and  after  the  first  Day  of  May  next,  no 
Clerk,  or  Register,  or  Deputy  Register,  of  any  Court,  nor 
any  Examiner,  or  Master  of  the  Court  of  Chancery,  shall  act 
as  a  Counsellor,  Attorney,  Solicitor,  Advocate  or  Proctor,  in 
any  Suit,  Action  or  Matter  in  the  same  Court ;  and  that  no 
Under  Sheriff,  Sheriff's  Clerk,  Coronor  or  Bailiff,  shall,  dur- 
ing his  Continuance  in  Office,  act  as  Counsellor,  Attorney, 
Solicitor,  Advocate  or  Proctor,  in  any  Court  whatsoever. 
Provided  nevertheless.  That  every  such  Clerk,  Register,  or 
Deputy  Register,  Examiner,  or  Master  of  the  Court  of 
Chancery,  who  now  practises  as  Counsellor,  Attorney,  Solici- 
tor, Advocate  or  Proctor,  shall  and  may  proceed  to  prose- 
cute such  Actions  and  Suits,  in  which  he  now  is,  or  before 
the  first  Day  of  May  next,  shall  be  Attorney  of  Record, 
Solicitor  or  Proctor,  until  such  Suit  or  Action  is  finally 
concluded."  * 

It  will  be  noticed  that  the  4th,  5th  and  6t'h  sections  of  this 
act  practically  embody  the  provisions  of  the  English  Statute 
Primer  Westminster.  And  if  the  provisions  of  the  5th  and 
6th  sections  were  included  in  the  oath  of  office  required  by 
the  act,  the  oath  would  correspond  very  nearly  to  the  official 
oath  established  in  New  Hampshire  in  1686.  The  statute  is 
also  interesting  as  showing  how  carefully  written  authority 
by  parties  to  attorneys  was  then  required  to  be  given  by  a 
warrant  of  attorney. 

The  only  oath  now  required  upon  the  admission  of  lawyers 
in  New  York  is  the  oath  of  office  prescribed  by  the  Article 
XIII.  of  the  Constitution  to  be  taken  by  all  officers  and, 
as  applied  to  lawyers,  is  as  follows : 

*  Laws  of  New  York.     Edition  of  1789,  Vol.  2,  page  64. 


85 

I  do  hereby  solemnly  swear  that  I  will  support  the 
Constitution  of  the  United  States  and  the  Constitution 
of  the  State  of  New  York  and  that  I  will  faithfully  dis- 
charge the  duties  of  the  office  of  Attorney  and  Coun- 
sellor at  Law  in  the  Supreme  Court  of  the  State  of  New 
York  according  to  the  best  of  my  ability. 


86 


IN    NORTH    CAROLINA. 

The  English  statutes  as  to  lawyers  were  observed  in 
North  Carolina  and  were  considered  as  in  force  as  late  as 
1792.  Chapter  29  Primer  Westminster,  as  to  the  penalty 
of  a  Sergeant  or  pleader  committing  deceit,  and  Chapter 
7  of  the  Statutes,  James  I.,  3,  were  printed  in  that  year,  as 
being  in  force  in  the  State  of  North  Carolina.* 

This  last  statute  was  as  follows : 

"  An  Act  to  reform  the  Multitudes  and  Misdemeanors  of 
Attornies  and  Solicitors  at  Law,  and  to  avoid  unneces- 
sary Suits  and  Charges  in  Law. 

"  For  that  through  the  abuse  of  sundry  Attornies  and 
Solicitors  by  charging  their  clients  with  excessive  fees,  and 
other  unnecessary  demands,  such  as  were  not,  nor  ought  by 
them  to  have  been  employed  or  demanded,  whereby  the 
subjects  grow  to  be  overmuch  burthened,  and  the  practice  of 
the  just  and  honest  Serjeant  and  Counsellor  at  Law  greatly 
slandered  ;  And  for  that  to  work  the  private  gain  of  such 
Attornies  and  Solicitors,  the  client  is  often  times  extraor- 
dinarily delayed :  Be  it  enacted  by  the  authority  of  this 
present  Parliament,  that  no  Attorney,  Solicitor,  pr  servant  to 
any,  shall  be  allowed  from  his  client  or  master,  of  or  for  any 
fee  given  to  any  Serjeant  or  Counsellor  at  Law,  or  of  or  for 
any  sum  or  sums  of  money  given  for  copies  to  any  Clerk  or 
Clerks,  or  officers  in  any  court  or  courts  of  record  at  West- 
minster, unless  he   have  a  ticket  subscribed   with    the   hand 

*  A  Collection  of  the  Statutes  of  the  Parliament  of  England  in  force  in  the  State  of 
North-Carolina.  Published  according  to  a  Resolve  of  the  General  Assembl)'.  By 
Francois-Xavier  Martin,  Esq.,  Counsellor  at  law,  1792,  pages  10,  356. 


87 

and  name  of  the  same  Serjeant  or  Counsellor,  Clerk  or 
Clerks,  or  officers  aforesaid,  testifying  how  much  he  hath 
received  for  his  fee,  or  given  or  paid  for  copies,  and  at  what 
time,  and  how  often :  And  that  all  Attornies  and  Solicitors 
shall  give  a  true  bill  unto  their  masters  or  clients,  or  their 
assigns,  of  all  other  charges  concerning  the  suits  which  they 
have  for  them,  subscribed  with  his  own  hand  and  name, 
before  such  time  as  they  or  any  of  them  shall  charge  their 
clients  with  any  the  same  fees  or  charges :  And  that  if  the 
Attorney  or  Solicitor  do  or  shall  willingly  delay  his  clients 
suits  to  work  his  own  gain,  or  demand  by  his  bill  any  other 
sums  of  money,  or  allowance  upon  his  account  of  any  money 
which  he  hath  not  laid  out  or  disbursed,  that  in  every  such 
case,  the  party  grieved,  shall  have  his  action  against  such 
Attorney  or  Solicitor,  and  recover  therein  costs  and  treble 
damages,  and  the  said  Attorney  and  Solicitor  shall  be 
discharged  from  thenceforth  from  being  an  Attorney  or 
Solicitor  any  more.  « 

"  II.  And  to  avoid  the  infinite  numbers  of  Solicitors  and 
Attornies,  be  it  enacted  by  the  authority  of  this  present 
Parliament,  that  none  shall  from  henceforth  be  admitted 
Attornies  in  any  the  King's  courts  of  record  aforesaid,  but 
such  as  have  been  brought  up  in  the  same  courts,  or  other- 
wise well  practised  in  soliciting  of  causes,  and  have  been 
found  by  their  dealings  to  be  skilful  and  of  honest  dis- 
position: And  that  none  to  be  suffered  to  solicit  any  cause 
or  causes  in  any  of  the  courts  aforesaid,  but  only  such  as  are 
known  to  be  men  of  sufficient  and  honest  disposition;  And 
that  no  Attorney  shall  admit  any  other  to  follow  any  suit  in 
his  name,  upon  pain  that  both  the  Attorney  and  he  tha 
followeth  any  such  suit  in  his  name,  shall  each  of  them   for- 


88 


feit  for  such  offence,  twenty  pound,  the  one  moiety  whereof 
to  our  Sovereign  Lord  the  King,  his  heirs  and  successors, 
and  the  other  moiety  to  the  party  grieved,  to  be  recovered  in 
an\-  the  said  courts  of  record  aforesaid,  b}^  original  writ  of 
debt,  bill,  plaint,  or  information,  wherein  no  manner  of 
essoin,  wager  of  law,  or  protection  shall  be  allowed  :  And 
that  the  Attorney  in  such  case  shall  be  excluded  from  being 
an  Attorney  for  ever  thereafter."  * 

In  1777,  after  North  Carolina  became  a  State,  the  admis- 
sion of  Attorneys  was  regulated  by 

"  An   act  for  establishing  courts  of  law,   and  for  regulating 
the  proceedings  therein,"  as  follows: 

VII.  And  be  it  further  enacted  by  the  authority  afore- 
said. That  all  persons  who  have  heretofore  obtained  licences 
to  practise  as  attornies  in  the  courts  under  the  late  govern- 
ment, and  have  been  admitted  as  such,  shall  hereafter  be 
permitted  to  practise  in  such  courts  in  which  they  were 
heretofore  admitted  to  practise,  without  an}'  further  examina- 
tion ;  and  every  person  who  shall  hereafter  apply  for  admis- 
sion to  practise  as  an  attorney,  shall  undergo  an  examination 
before  two  or  more  judges  of  the  superior  courts  of  this  state, 
and  if  such  person  shall  be  found  to  possess  a  competent 
share  of  law  knowledge,  and  be  a  person  of  upright  charac- 
ter, such  judges  shall  give  him  a  certificate,  under  their 
hands  and  seals,  to  practise  in  any  court  of  this  state  for 
which  they  may  judge  him  qualified. 

VIII.  And  be  it  further  enacted  by  the  authority  afore- 
said. That  no  person  coming  into  this  state  from  any  other 
state,  or  from  any  foreign  country,  with  an  intention  to  prac- 

*  Statutes  of  England  in  force  in  North  Carolina,  1792,  pages  356-7. 


89 

tise  the  law,  shall  by  the  said  judges  be  admitted  to  practise 
as  an  attorney,  unless  he  shall  have  previously  resided  one 
year  in  this  state,  or  unless  such  person  shall  produce  to  the 
said  judges  a  testimonial  from  the  chief  magistrate  of  such 
state  or  country,  or  from  some  other  competent  authority, 
that  he  is  of  an  unexceptionable  moral  character;  and  all 
such  attornies,  before  they  shall  be  admitted  to  practise  in 
any  court,  shall  in  open  court,  before  the  judges  thereof, 
take  the  following  oath,  viz. : 

"  I  A.  B.  do  swear,  that  I  will  truly  and  honestly 
demean  myself  in  the  practise  of  an  attorney,  according 
to  the  best  of  my  knowledge  and  ability.  So  help  me 
God." 

And  upon  such  qualification  had,  and  oath  taken,  such 
attornies,  as  well  as  those  who  have  heretofore  obtained 
licences,  may  act  as  attornies  during  their  good  behaviour.* 

In  North  Carolina  an  act  was  passed  in  1786  as  to  the 
jurisdiction  of  courts,  etc.,  the  2d  clause  of  which  was  as 
follows : 

"  II.  AND  whereas  the  frequent  Abufes  of  Attornies 
have  occafioned  Diftreffes  to  many  of  the  good  People 
of  this  State ;  Be  it  therefore  enacted,  That  it  fhall  not 
be  lawful  for  either  Plaintiff  or  Defendant  to  employ  in 
any  Matter  or  Suit  whatever  more  than  one  Attorney  to 
fpeak  to  any  Suit  in  Court;  and  the  Courts  in  this  State 
are  hereby  directed  not  to  fuffer  more  than  one  Attorney 
as  aforefaid  in  any  Matter  whatever,  to  plead  for  either 
Plaintiff  or  Defendant  to  any  Suit,  under  the  Penalty  of 
a  Violation  of  this  Act."  f 

*  Public  Acts  of  North  Carolina.     Edition  of  1804,  Vol.  i,  page  210. 
t"  Laws  of  the  State  of  North  Carolina,"  1715-1790,  Ch.  14. 


90 

The  4th  clause  established  fees  to  be  taken  by  attorneys ; 
and  the  5th  provided  that  if  any  attorney  should  take 
directly  or  indirectly  any  other  or  greater  fees  "  it  fhall  be 
deemed  in  fuch  Attorney  a  Mifdemeanor  in  his  Ofifice  or 
Profeffion  of  an  Attorney;"  and  then  provided  for  prosecu- 
tion, trial  by  jury,  and  dismission  from  practice  for  one  year 
in  case  of  conviction. 

The  provision  as  to  admission  of  attorneys  now  is  as  fol- 
lows : 

"  Attorneys  before  they  shall  be  admitted  to  practice  law 
shall,  in  open  court  before  a  justice  of  the  supreme  or  judge 
of  the  superior  court,  take  the  oath  prescribed  for  attorneys, 
and  also  the  oaths  of  allegiance  to  the  state,  and  to  support 
the  constitution  of  the  United  States,  prescribed  for  all  public 
officers,  and  the  same  shall  be  entered  on  the  records  of  the 
court;  and,  upon  such  qualification  had,  and  oath  taken, 
may  act  as  attorneys  during  their  good  behavior."  The 
oath  prescribed  is  as  follows : 

"  I,  A.  B.,  do  swear  (or  affirm)  that  I  will  truly  and 
honestly  demean  myself  in  the  practice  of  an  attorney, 
according  to  the  best  of  my  knowledge  and  ability;  so 
help  me,  God."  * 

North  Carolina  has  a  recent  statute  regulating  the  disbar- 
ment and  suspension  of  Attorneys  which  specifies  the  causes 
for  which  they  may  be  removed  from  office,  but  recognizes 
the  discretionary  power  of  the  Court  to  disbar  or  suspend 
them.f 

*  Revised  Laws  of  North  Carolina,  1905,  Chap.  5,  Sect.  209 ;  Chap.  56,  Sect.  2360. 
t  Public  Laws,  North  Carolina,  1907,  Ch.  941. 


91 


IN    PENNSYLVANIA. 

The  first  provision  of  law  as  to  Attorneys  in  Pennsylvania 
was  in  1722  in 

"  An    ACT    for    establishing    Courts    of  Judicature    in    this 
province,"  as  follows: 

"  XXVIII.  And  be  it  further  enacted,  That  there  may 
be  a  competent  number  of  persons,  of  an  honest  dispo- 
sition, and  learned  in  the  law,  admitted  by  the  Justices  of 
the  said  respective  courts,  to  practise  as  Attornies  there ; 
who  shall  behave  themselves  justly  and  faithfully  in  their 
practice  :  And  if  they  misbehave  themselves  therein,  they 
shall  suffer  such  penalties  and  suspensions,  as  Attornies  at 
law  in  Great-Britain  are  liable  to  in  such  cases ;  by  which 
Attornies  actions  may  be  entered,  and  writs,  process,  declara- 
tions, and  other  pleadings  and  records,  in  all  such  actions 
and  suits,  as  they  shall  respectively  be  concerned  to  prose- 
cute or  defend  from  time  to  time,  may  be  drawn,  and  with 
their  names  and  proper  hands  signed  :  Which  said  Attornies 
so  admitted  may  practise  in  all  the  courts  of  this  province, 
without  any  further  or  other  licence  or  admittance:  And 
that  the  Attorney  for  the  plaintiff  in  every  action  shall  file 
his  warrant  of  attorney  in  the  Prothonotary's  office  the  same 
court  he  declares:  And  the  Attorney  for  the  defendant  shall 
file  his  warrant  of  attorney  the  same  court  he  appears: 
And  if  they  neglect  so  to  do,  they  shall  have  no  fee  allowed 
them  in  the  bill  of  costs,  nor  be  suffered  to  speak  in  the 
cause,  until  they  file  their  warrants  respectively."  * 

*  Laws  of  Pennsylvania.     Edition  of  1797,  Vol.  i.,  page  185. 

By  the  act  of  the   25th   day  of  September,  1786,  2d  vol.,  page  472,  the  court  is 


92 

In  1726  an  attorney's  oath  of  office  was  prescribed  by 
Governor  as  follows: 

"  AT  a  General  Assembly  begun  at  Philadelphia,  the 
Fourteenth  Day  of  October,  in  the  Thirteenth  Year  of  the 
Reign  of  our  Sovereign,  Lord  George  King  of  Great- 
Britain,  &C.  Anno ;  Domini,  One  Thousand  Seven  Hun- 
dred and  Twenty  Six  and  continued  by  Adjournment  till  the 
Twenty  fifth  Day  of  August  One  Thousand  Seven  Hundred 
and  Twenty  Seven,  the  following  Acts  were  passed  by  the 
Honourable  Patrick  Gordon,  Esq. ;  Governour  of  the  said 
Province,  That  is  to  say. 

An  ACT  for  the   Establishing  of  Courts  of  Judicature  in  this 
Province : 
********* 
And  be    it  further   Enacted    by  the  Authority    aforesaid. 
That  there   may  be  a  competent  Number  of  Persons  of  an 
honest  Disposition,  and  learned  in  the  Law,  admitted  by  the 
Justices  of  the  said  respective   Courts,  to  Practice  as  Attor- 
neys there,  who  shall  behave  themselves  justly  and  faithfully 
in  their  Practice  ;   and  before  they  are  so  admitted,  shall  take 
the  following  Qualification,  viz. 

Thou  shalt  behave  thy  self  in  the  Office  of  Attorney 
within  the  Court,  according  to  the  best  of  thy  Learning 
and  Ability,  and  with  all  good  Fidelity,  as  well  to  the 
Court  as  to  the  Client:  Thou  shalt  use  no  Falshood, 
nor  Delay  any  Persons  Cause  for  Lucre  or  Malice. 

And  if  they  misbehave  themselves  therein,  they  shall  suffer 
such    Penalties    and    Suspensions    as    Attorneys    at    Law    in 

empowered  to  make  rules  for  the  government  of  its  own  practice ;  and  by  the  act  of 
the  13th  day  of  April,  1791,  3d  vol.,  page  96,  the  Judges  of  the  Courts  of  Record 
therein  mentioned  are  excluded  from  practising  as  Counsellors  or  Attornies. 


Great-Britain  are  liable  to  in  such  Cases;  by  which  Attor- 
neys, Actions  may  be  entered,  and  Writs,  Process,  Declara- 
tions and  other  Pleadings,  and  Records  in  all  such  Actions 
and  Suits  as  the)'  shall  respectively  be  concerned  to  prose- 
cute or  defend,  from  Time  to  Time  may  be  drawn  and  with 
their  Names  and  proper  Hands  signed.  Which  said  Attor- 
neys so  admitted,  may  practice  in  all  the  Courts  of  this 
Province,  without  any  further  or  other  Licence  or  Admit- 
tance. 

And  that  the  Attorney  for  the  Plaintiff  in  every  Action 
shall  file  his  Warrant  of  Attorney  in  the  Prothonotary's 
Office  the  same  Court  he  declares,  and  the  Attorney  for  the 
Defendant  shall  file  his  Warrant  of  Attorney  the  same  Court 
he  appears  and  if  they  neglect  so  to  do,  they  shall  have  no 
Fee  allowed  them  in  the  Bill  of  Costs,  nor  be  suffered  to 
speak  in  the  Cause  until  they  file  their  Warrants  of  Attorney 
respectively."  * 

The  oath  of  office  prescribed  by  this  statute  has  been  sub- 
stantially retained  in  use  to  the  present  time  with  "  thou  " 
and  "  thy,"  the  Quaker  form,  changed  to  "  you  "  and  "  your," 
and  is  now  as  follows  : 

"  You  do  swear  (or  affirm)  that  you  will  support  the 
Constitution  of  the  United  States,  and  the  constitution 
of  this  commonwealth,  and  that  you  will  behave  your- 
self in  the  office  of  attorney  within  this  court  according 
to  the  best  of  your  learning  and  ability,  and  with  all 
good  fidelity,  as  well  to  the  court  as  to  the  client,  that 
you  will  use  no  falsehood,  nor  delay  any  person's  cause 
for  lucre  or  malice."  t 

*  Laws  of  Pennsylvania.     Edition  of  1728,  pages  327,  336. 
t  Digest  Laws  (Pepper  and  Lewis),  page  225. 


94 


IN    RHODE    ISLAND. 

In  Rhode  Island  an  act  was  passed  in  1647  ^^  to  Attor- 
ne}'s,  which  specifically  referred  to  the  English  statutes  as  to 
lawyers.      It  was  as  follows  : 

"  Be  it  enacted  by  the  authority  of  the  present  Assem- 
bly that  any  man  may  plead  his  own  case  in  any  court 
or  before  any  jury  of  record  throughout  the  whole 
Colony,  or  make  his  attorney  to  plead  for  him,  or  may 
use  the  attorney  that  belongs  to  the  court,  which  may 
be  two  in  a  town,  to  wit:  discreet,  honest  and  able  men 
for  understanding,  chosen  by  the  townsmen  of  the  same 
town,  and  solemnly  engaged  by  the  head  officer  thereof, 
not  to  use  afty  manner  of  deceit  to  beguile  either  court  or 
party.  And  these  being  thus  chosen  and  confirmed, 
shall  be  authorised,  being  entertained,  to  plead  in  any 
court  of  the  Colony;  but  incase  any  such  pleader  or 
attorney  shall  use  any  manner  of  deceit,  as  is  aforesaid, 
and  be  thereof  attainted,  or  that  shall  be  notoriously 
in  any  default  of  record,  he  shall  forfeit  his  place  and 
never  more  be  admitted  to  plead  in  any  court  of  the 
Colony.      3  Ed.  4,  28  ;  4  Hen.  4,  18 — ."  * 

The  words  "  solemnly  engaged  "  in  this  act  may  not  hav^e 
required  an  oath,  but  at  a  General  Assembly  held  at  New- 
port the  second  of  May,  1705.  an  act  was  passed  specifically 
providing  for  an  oath  as  follows  : 

"  no  attorney  shall  be  admitted  to  plead   in  any  of  the 
Courts  but  shall  be  Sworne,  not  to  Plead  for  favour  nor 

*Code  of  Laws  of  R.I.,  1647  (Staples) ,  page  58. 


95 

affection    for   any  Person,    but    ye    meritt   of  the    Case 
according  to  Law."  * 

The  admission  of  attorneys  to  practise  in  the  Courts  of 
Rhode  Island  was  regulated  by  the  Courts  until  1798,  under 
the  authority  given  by  statute  to  make  such  necessary  rules 
of  practice  as  the  Court  should  from  time  to  time  find  nec- 
essary for  the  better  regulation  of  the  Court.  In  1822,  how- 
ever, Section  4  of  the  act  to  establish  a  Supreme  Judicial 
Court  provided 

"...  That  the  said  Supreme  Court  shall  have 
power  ...  to  make  and  establish  all  such  rules  for 
the  admission  of  attornies  to  practice  in  said  court,  and 
for  the  orderly  conducting  business  therein,  as  the  dis- 
cretion of  said  court  shall  direct;  .provided  such  rules 
are  not  repugnant  to  the  laws  of  the  state." 

The  present  statute  provides  that 

"The  Supreme  Court  .  .  .  shall  by  general  or  special 
rules  regulate  the  admission  of  attorneys  to  practice  in  all 
the  courts  of  the  state." 

It  was,  however,  the  custom  from  the  beginning,  as  is 
shown  by  the  records  of  the  Court,  to  require  an  official  oath 
upon  the  admission  of  an  attorney.  The  records  of  the 
Supreme  Court  of  1765  show  that 

"Joseph  Aplin,  Esq.,  was  admitted  and  duly  sworn  an 
attorney  and  practitioner  of  this  court."  f 

*  Public  Laws  of  Rhode  Island,  1636-1705,  page  116  (reprint  edited  by  Sidney  S. 
Rider,  1896). 

t  Records  in  custody  of  Clerl<  of  Supreme  Court,  Book  i,  page  404,  April  27,  1765. 


96 

In  May,  1837,  the  Supreme  Court  established  the  following 
as  the  form  of  an  attorney's  oath  : 

I do  solemnly  swear,  that  I 

will  demean  myself  as  an  Attorney  and  Counsellor  of 
this  Court,  and  all  other  Courts  and  tribunals  of  the 
State  before  whom  I  may  practise  as  an  Attorney  or 
Counsellor,  uprightly  and  according  to  law,  and  that  I 
will  support  the  Constitution  and  laws  of  this  State,  and 
the  Constitution  of  the  United  States.* 

In  1886  this  form  was  slightly  modified  as  follows,  which 
is  the  form  now  used  : 

I, ,  do  solemnly  swear  that  I 

will  demean  myself  as  an  attorney  and  counsellor  of  this 
court,  and  of  all  other  courts  before  which  I  may  prac- 
tice as  an  attorney  and  counsellor,  uprightly  and  accord- 
ing to  law,  and  that  I  will  support  the  Constitution  and 
laws  of  this  State  and  the  Constitution  of  the  United 
States. t 


*  Rules  of  Supreme  Court  adopted  May,  1837,  I.  R.I.,  IX. 
t  Rules  of  Supreme  Court  adopted  March,  1886,  15  R.I.,  632. 


97 


IN    SOUTH    CAROLINA. 

A  large  number  of  English  statutes  were  made  of  force  in 
South  Carolina  in  December,  17 12.  Among  others  Chap- 
ter 29  of  Primer  Westminster  as  to  penalties  upon  Serjeants 
or  pleaders  committing  deceit;  and  also  the  provision  of 
Chapter  18,  4  Henry  4  (A.D.  1402),  as  to  the  admission 
and  regulation  of  attorneys,  as  follows : 

"  The  punishment  of  an  Attorney  found  in  Default. 

"  ITEM,  For  sundry  damages  and  mischiefs  that  have 
ensued  before  this  time  to  divers  persons  of  the  realm 
by  a  great  number  of  attornies,  ignorant  and  not  learned 
in  the  law,  as  they  were  wont  to  be  before  this  time  ; 
(2)  it  is  ordained  and  stablished,  That  all  the  attornies 
shall  be  examined  by  the  justices,  and  by  their  dis- 
cretions their  names  put  in  the  roll,  and  they  that  be 
good  and  virtuous,  and  of  good  fame,  shall  be  received 
and  sworn  well  and  truly  to  serve  in  their  offices,  and 
especially  that  they  make  no  suit  in  a  foreign  county; 
and  the  other  attornies  shall  be  put  out  by  the  discretion 
of  the  said  justices;  (3)  And  that  their  masters,  for 
whom  they  were  attornies,  be  warned  to  take  others  in 
their  places,  so  that  in  the  mean  time  no  damage  or 
prejudice  come  to  their  said  masters.  {4)  And  if  any 
of  the  said  attornies  do  die,  or  do  cease,  the  justices  for 
the  time  being  by  their  discretion  shall  make  another  in 
his  place,  which  is  a  virtuous  man  and  learned,  and 
sworn  in  the  same  manner  as  afore  is  said;  (5)  and  if 
any  such  attorney  be  hereafter  notoriously  found  in  any 


98 

default  of  record,  or  otherwise,  he  shall  forswear  the 
court,  and  never  after  be  received  to  make  any  suit  in 
any  court  of  the  King.  (6)  And  that  this  ordinance 
be  holden  in  the  Exchequer  after  the  discretion  of  the 
treasurer  and  of  the  barons  there."  * 

In  1 72 1  the  admission  of  attorneys  was  provided  for  by 

"  An  Act  for  establishing  County  and  Precinct  Courts,"   as 
follows  : 

"  And  whereas  divers  unskilful  person  do  often  under- 
take to  manage  and  solicit  business  in  the  courts  of  law 
and  equity,  to  the  unspeakable  damage  of  the  clients, 
occasioned  by  the  ignorance  of  such  solicitors,  who  are 
no  ways  qualified  for  that  purpose,  tending  to  the  pro- 
moting litigiousness,  and  encouraging  of  vexatious 
suits:  Be  it  therefore  enacted,  That  no  person  whatso- 
ever shall  practise  or  solicit  the  cause  of  any  other 
person,  in  the  said  county  or  precinct  courts,  or  any 
other  court  of  law  and  equity  in  this  Province,  unless  he 
hath  been  heretofore  admitted  and  sworn  as  an  attorney, 
or  hereafter  shall  be  admitted  and  sworn  as  an  attorney, 
by  the  Chief  Justice  and  Judges  of  the  General  and 
Supreme  Court  at  Charlestown,  under  the  penalty  of 
£.100  for  every  cause  he  shall  so  solicit,  one-half  to  his 
Majesty  for  the  use  of  the  public,  and  the  other  half  to 
him  or  them  that  will  sue  for  the  same."  f 


*  South  Carolina  Statutes  at  Large,  Vol.  2,  pages  401,  420,  and  447.     Public  Laws 
of  South  Carolina  (Ed.  1790),  page  28. 

t  Public  laws  of  South  Carolina  (Ed.,  1790),  page  116. 


99 

In  1785  an  act  "to  regulate  the  admission  of  attornies  at 
law  "  was  passed  as  follows  : 

"Whereas,  the  admission  of  attornies  at  law,  in  this 
State,  hath  hitherto  depended  on  a  rule  of  court,  which 
experience  hath  shewn  to  be  productive  of  great  uncer- 
tainty and  confusion  ;  for  remedy  whereof, 

"  I.  Be  it  enacted,  by  the  honorable  the  Senate  and 
House  of  Representatives,  now  met  and  sitting  in  Gen- 
eral Assembly,  That  when  any  person,  citizen  of  the 
United  States  of  America,  who  hath  resided  four  years 
in  any  one  or  more  of  them,  shall  have  acquired  a  suf- 
ficient knowledge  of  the  laws  of  this  State  to  qualify  him 
to  practise  the  law  in  this  State,  and  shall  apply  for 
admission  to  the  bar,  he  shall  address  a  petition  to  the 
judges  of  the  court  of  common  pleas,  praying  to  be 
examined  touching  his  capacity,  ability  and  fitness  to 
plead  and  practise  as  an  attorney;  whereupon  any  three 
of  the  said  judges,  or  two  of  them  with  one  of  the  chan- 
cellors, or  any  one  of  them  with  two  of  the  chancellors, 
shall,  and  they  are  hereby  directed,  diligently  and  faith- 
fully to  examine  such  person  touching  his  capacity, 
ability  and  fitness  to  plead  and  practice  as  aforesaid,  and 
to  whom  such  person  shall  also  produce  satisfactory 
testimonials  of  his  probity,  honesty  and  good  demeanor; 
and  if  such  person  shall  be  found  duly  qualified,  the 
said  judges  on  examination  shall  grant  to  such  person  a 
license,  from  under  their  hands,  to  plead  and  practise  as 
an  attorney,  in  any  court  of  law  or  equity  in  this  State. 

"II.  And  be  it  furt/ier  enacted  by  the  authority 
aforesaid.   That  when   any    person   shall  have    served    a 


lOO 


clerkship  of  four  years  to  some  practising  attorney  of 
the  said  court  of  common  pleas,  who  hath  practised 
therein  for  the  term  of  seven  years  thence  before,  or  to 
the  prothonotary  of  the  said  court,  and  shall  adduce  satis- 
factory proof  thereof  to  the  said  court;  or  any  native  of 
the  United  States  who  shall  produce  proper  testimonials 
of  his  having  studied  for  three  years  in  any  foreign  uni- 
versity or  law  college,  and  is  willing  and  desirous  of 
being  examined  as  to  his  knowledge  of  law,  which  the 
judges  of  the  court  of  chancery  or  common  pleas  are 
hereby  authorised  and  required  to  do  in  manner  afore- 
said, and  on  such  examination  shall  be  found  duly  quali- 
fied —  every  such  person  and  persons  shall  be  admitted 
to  the  bar  of  the  several  courts  of  law  and  equity  in  this 
State. 

"  III.  And  whereas,  by  the  articles  of  confederation, 
every  citizen  of  the  United  States  is  entitled  to  the  privi- 
lege of  following  his  calling  or  profession  in  each  of  the 
said  United  States ;  Be  it  therefore  enacted  by  the 
authority  aforesaid,  That  where  any  citizen  of  any  of 
the  United  States  hath  been  admitted  to  plead  and 
practise  the  law  in  any  court  of  supreme  jurisdiction  in 
either  of  the  said  United  States,  and  shall  become  a 
resident  of  this  State,  such  person  may  prefer  his  peti- 
tion to  the  court  of  common  pleas  of  this  State,  setting 
forth  such  his  admission,  and  shall  moreover  produce  to 
the  said  court  a  certificate  under  the  hands  of  the 
judges  of  such  supreme  court,  or  a  majority  of  them, 
and  the  seal  of  their  court,  that  such  person  is  an  attor- 
ney of  such  court,  duly  admitted,  at  least  two  years 
previous  to  the  date  of  such  certificate,  and  is  a  person 
of  unblemished  character  for  probity,  honesty  and  good 


lOI 


demeanor,  whereupon  such  person  shall  be  admitted  to 
the  bar  of  the  supreme  courts  of  law  and  equity  in  this 
State. 

"  IV.  And  be  it  further  enacted  by  the  authority 
aforesaid,  That  every  person  so  licensed  and  admitted  as 
aforesaid  shall,  at  the  time  of  his  admission,  take  the 
oath  of  allegiance  and  fidelity  to  this  State,  and  likewise 
the  oath  of  an  attorney ;  and  if  any  person  shall  pre- 
sume to  act  without  having  taken  the  said  oaths  respec- 
tively, such  person  shall  forfeit  and  pay  the  sum  of  one 
hundred  pounds  sterling,  to  be  recovered  by  any 
informer  who  shall  sue  for  the  same  by  action  of  debt, 
in  any  court  of  record  having  jurisdiction  :  Provided, 
that  nothing  contained  in  this  Act  shall  exclude  any 
person  or  persons  who  have  any  business  depending  in 
any  of  the  courts,  either  to  plead  in  his  own  case,  to 
put  in  his  plea  or  answer  at  the  proper  office,  or  file  his 
declaration,  as  the  case  may  be."  * 

The  present  law  of  South  Carolina  forbids  any  person  to 
practise  in  any  Court  unless  he  has  been  admitted  and 
sworn  as  an  attorney,  under  a  penalty  of  $500  for  each 
cause  in  which  he  shall  act.  A  license  to  practise  as  an 
attorney  can  only  be  granted  by  the  Supreme  Court  upon  a 
written  examination  upon  a  course  of  study  prescribed  by 
it,  or  upon  a  degree  of  the  Law  School  of  the  State  Univer- 
sity, and  satisfactory  evidence  of  good  moral  character. 
Upon  admission  the  attorney  must  take  and  subscribe  the 
oath  required  by  the  Constitution  of  all  officers,  and  the 
oath  respecting  duelling,  in  open  Court,  and  his  name  is 
then  entered  on  the  roll  of  attorneys  in  Court, 

*  Statutes  at  Large,  South  Carolina,  Vol.  IV.,  page  668. 


I02 


IN   VIRGINIA. 


The  admission  of  attorneys  was  regulated   in  Virginia  in 
1642  by  an  act  which  provided  that 

"  For  the  better  regulating  of  attorneys  and  the  great  fees 
exacted  by  them,  it  shall  not  be  lawfull  for  any  attorney  to 
plead  causes  on  behalfe  of  another  without  license  or  per- 
mission first  had  and  obtained  from  the  court  where  he 
pleadeth,  Neither  shall  it  be  lawfull  for  any  attorney  to  have 
license  from  more  courts  then  from  the  quarter  court  and 
one  county  court,  and  that  they  likewise  be  sworne  in  the 
said  courts  where  they  are  so  licensed,  And  it  is  further 
enacted  that  no  attorneys  plead  in  any  county  court  shall 
demand  or  receive  either  for  drawing  petition,  declaration  or 
answer  and  for  his  fifee  of  pleading  the  cause  of  his  client 
above  the  quantitie  of  20  lb.  of  tobaccoe  or  the  value 
thereof,  nor  that  at  any  pleading  in  the  quarter  court  shall 
demand  and  receive  either  for  drawing  petition,  declaration 
or  answer  and  for  his  ffee  of  pleading  the  cause  of  his  cliant 
above  the  quantity  or  50  lb,  of  tobaccoe  or  the  value  thereof, 
And  if  any  attorney  shall  transgresse  against  the  premises, 
or  shall  take  above  the  severall  sums  aforesaid  either  by  gift 
or  love  directly  or  indirectly,  such  attorney  for  such  offence 
in  a  countye  court  shall  forfeit  500  lb.  tobaccoe.  And  for 
such  offence  in  quarter  court  shall  forfeit  2000  lb.  of  tobac- 
coe, one  moyety  whereof  shall  be  and  come  to  the  King, 
and  the  other  moyetie  or  halfe  to  the  informer,  whether  it  be 
client  or  adverse  party,  or  any  other  person  whatsoever,  and 
may  recover  the  same  b)'  action  of  debt  in  the  severall 
courts    respectively,   And    it    is  further  thought  fitt  that  no 


103 

attorney  licensed  as  aforesaid  shall  refuse  to  be  entertayned 
in  any  cause  as  aforesaid,  provided  he  be  not  entertayned  by 
the  adverse  party,  vppon  forfeiture  of  250  lb.  of  tobacco  in 
a  countie  court,  and  1000  lb.  of  tobaccoe  in  the  quarter 
court  one  moyety  whereof  shall  come  to  the  King's  majesty 
and  the  other  halfe  to  the  informer  aforesaid,  Provided  this 
act  nor  any  penaltie  therein  expressed  extend  to  such  who 
shall  be  made  speciall  attorneys  within  the  collony  or  to 
such  who  shall  have  letters  of  procuration  out  of  England."  * 

In  1645  ^'^  ^^t  ^"^^^  passed  as  follows: 

"  Whereas  many  troublesom  suits  are  multiplied  by  the 
vnskillfullness  and  coveteousness  of  attorneys,  who  have 
more  intended  their  own  profit  and  their  inordinate  lucre 
then  the  good  and  benefit  of  their  clients :  Be  it  therefore 
enacted,  That  all  mercenary  attorneys  be  wholly  expelled 
from  such  office,  except  such  suits  as  they  have  already 
vndertaken,  and  are  now  depending,  and  in  case  any  person 
or  persons  shall  offend  contrary  to  this  act  to  be  fined  at 
the  discretion  of  the  court."  f 

In  the  same  year  an  act  was  passed  repealing  the  Act  of 
1643  for  the  licensing  of  Attorneys.  J 

In  1647  the  following  peculiar  act  was  passed: 

''  IT  is  thought  fitt  that  vnto  the  act  forbidding  mercenary 

attorneys,  It  bee  added  that  they  shall  not  take  any  recom- 

pence  either  directly  or  indirectly.     And  that  it  be  further 

enacted,  That  in  case  the  courts  shall  perceive  that  in  any 

*  Laws  of  Virginia,  March,  1642-3,  Act  LXI. 
+  Laws  of  Virginia,  November,  1645,  Act  VIL 
X  Laws  of  Virginia,  Marcli,  1645-6,  Act  VI IL 


I04 

case  either  pit.  or  defendant  by  his  vveakeness  shall  be  like  to 
loose  his  cause,  that  they  themselves  may  either  open  the 
cause  in  such  case  of  weakness  or  shall  appoint  some  fitt 
man  out  of  the  people  to  plead  the  cause,  and  allow  him 
satisfaction  requisite,  and  not  to  allow  any  other  attorneys 
in  private  causes  betwixt  man  and  man  in  the  country."  * 

The  fact  that  no  "  mercenary  "  attorneys,  that  is,  attorneys 
acting  for  compensation  could  practise  in  the  Courts, 
apparently  produced  difficulty,  and  in  1656  all  acts  against 
such  attorneys  were  repealed  and  provision  was  made  for  the 
admission  of  attorneys  by  the  following  act: 

"THIS  Assembly  findeing  many  inconveniencies  in  the  act 
prohibiting  mercenary  attornies,  doe  therefore  hereby  enact, 
and  be  it  by  these  presents  enacted,  that  that  act,  and  all 
other  acts  against  mercenary  attorneys  to  bee  totally  repealed, 
And  be  it  enacted  that  the  Governour  and  Councill  shall 
appoint  and  allow  such  as  they  shall  find  fitt  and  able  to  be 
attornies  in  the  quarter  courts,  and  the  comissioners  to  do 
the  like  by  nominateing  attornies  for  the  county  courts, 
Provided  that  no  attorney  be  admitted  to  practice  or  plead, 
before  he  hath  taken  this  oath  following: 

(The  oath  is  wanting  in  both  MSS.) 

And  if  any  controversies  arise  between  attornie  and  his 
client  about  their  ffee,  it  shall  be  determined  in  the  court 
where  the  cause  is  pleaded.  Provided  allwaies  that  those 
onely  be  called  councellors  at  law,  who  have  allreadie  been 
qualified  therevnto  by  the  lawes  of  England,  and  those  so 
qualified  to  enjoy  all  priviledges  those  lawes  give  them."  f 

*  Laws  of  Virginia,  November,  1647,  Act  XVI. 
t  Laws  of  Virginia,  December,  1656,  Act  VL 


105 

At  this  time  the  acts  of  the  Assembly  were  not  printed 
and  this  statute  was  afterwards  printed  from  manuscripts  of 
Mr.  Jefferson  and  of  Mr.  Rand,  in  both  of  which  the  oath 
was  found  wanting,  and  that  fact  is  noted  in  the  printed 
statute. 

In  March,  1657,  the  following  act  was  passed,  which  of 
course  repealed  the  act  of  1656,  and  provided  a  new  oath, 
which  may,  perhaps,  account  for  the  oath  in  the  act  of  1656 
not  being  written  out: 

"  Whereas  there  doth  much  charge  and  trouble  arise  by 
the  admittance  of  attorneys  and  lawyers  through  pleading  of 
causes  thereby  to  maintain  suites  in  lawe,  to  the  greate  preju- 
dice and  charge  of  the  inhabitants  of  this  collony  for  pre- 
vention thereof  be  it  enacted  by  the  aiitJioritie  of  this  present 
Grand  Assembly  that  noe  person  or  persons  whatsoever 
within  this  collony  either  lawyers  or  any  other  shall  pleade 
in  any  courte  of  judicature  within  this  colloney  or  give 
councill  in  any  cause  or  controversie  whatsoever,  for  any 
kind  of  reward  or  profitt  whatsoever,  either  directly  or 
indirectly  vpon  the  penalty  of  ffive  thousand  pounds  of 
tobacco  vpon  every  breach  thereof:  And  because  the 
breakers  thereof  through  their  subtillity  cannot  easily  bee 
discerned :  Bee  it  therefore  fiirtlier  enacted,  That  every  one 
pleading  as  an  attorney  to  any  other  person  or  persons. 
If  either  pit.  or  defend't  desire  it  shall  make  oath.  That  he 
neither  directly  or  indirectly  is  a  breaker  of  the  act  afore- 
said." * 

In  March,  1658,  the   House  of  Burgesses   considered   the 

*Laws  of  Virginia,  March,  1657-8.     Act  CXI  I. 


io6 


question  whether  there  should  be  "  a  regulation  or  totall 
ejection  of  lawyers,"  and  resolved  that  there  should  be  "  an 
ejection,"  which  action  was  communicated  to  the  Governor 
and  Council,  who  answered  it,  saying: 

"  The  Governour  and  Council  will  consent  to  this 
proposition  so  farr  as  it  shall  be  agreeable  to  Magna 
Charta." 

Apparently  the  law  remained  in  this  unsatisfactory  con- 
dition until  1680,  when  an  act  was  passed  providing  for  the 
licensing  of  lawyers  who  practised  for  compensation  fixed 
by  the  act,  as  follows: 

"  Whereas  all  courts  in  this  country  are  many  tymes 
hindred  and  troubled  in  their  judiciall  proceedings  by  the 
impertinent  discourses  of  many  busy  and  ignorant  men  who 
will  pretend  to  assist  their  freind  in  his  busines  and  to  cleare 
the  matter  more  plainly  to  the  court,  although  never  desired 
or  requested  thereunto  b}^  the  person  whome  they  pretended 
to  assist,  and  many  tymes  to  the  destruction  of  his  cause, 
and  the  greate  trouble  and  hindrance  of  the  court;  for  pre- 
vention whereof  to  the  future.  Bee  it  enacted  by  the  kings  most 
excellent  majestie  by  and  with  the  consent  of  the  generall 
assembly,  and  it  is  hereby  enacted  by  the  authority  aforesaid 
that  noe  person  or  persons  whatsoever  shall  practice  as  an 
attorney  or  appeare  to  plead  in  the  generall  court  or  any 
county  court  in  this  country  but  such  as  shalbe  first  lycensed 
by  his  excellency  or  successors  thereunto,  and  that  any  one 
that  shall  presume  to  plead  in  the  generall  court  or  any 
county  or  other  court  without  such  lycense  fiirst  obtained 
and  had,  shall  forfeite  for  every  such  offence  comitted   in  the 


I07 

generall  court  two  thousand  pounds  of  tobacco,  and  for 
every  such  offence  comitted  in  the  county  court  six  hundred 
pounds  of  tobacco,  the  one  halfe  to  our  sovereigne  lord  the 
king,  his  heires  and  successors,  and  the  other  halfe  to  the 
informer  to  be  recovered  by  action  of  debt,  bill  plaint  or 
information  in  the  said  court  or  courts  where  such  offence 
shalbe  comitted.  And  be  it  ficrtlier  enacted  by  the  authority 
aforesaid  that  noe  attorney  or  attorneys  soe  lycensed  as 
aforesaid,  take,  demand,  or  receive  from  any  person  or 
persons,  more  for  any  cause  in  the  generall  court  and  bring- 
ing the  same  to  judgment,  then  five  hundred  pounds  of 
tobacco  and  caske,  and  for  any  cause  in  the  county  courts 
and  bringing  the  same  to  judgment  more  then  one  hundred 
and  ffifty  pounds  of  tobacco  and  caske.  And  it  is  hereby 
declared  and  oiacted  that  every  attorney  or  attorneys  shall 
have  for  every  cause  he  undertakes  in  the  generall  court,  five 
hundred  pounds  of  tobacco  and  caske,  and  for  every  cause 
he  undertakes  in  the  county  court,  one  hundred  and  fifty 
pounds  of  tobacco  and  caske,  which  he  may  lawfully  clayme 
without  any  preagreement  made  with  the  partyes  for  the 
same.  And  be  it  further  enacted  by  the  authority  aforesaid, 
and  it  is  hereby  enacted  that  all  such  attorney  and  attorneys 
that  shall  refuse  to  plead  any  cause  in  the  generall  court 
for  the  aforesaid  ascertained  fee  of  ffive  hundred  pounds  of 
tobacco  and  caske,  shall  forfeite  and  pay  to  the  person 
greived  ffive  hundred  pounds  of  tobacco  and  caske,  after 
legall  conviction,  on  due  proofe  thereof  made,  to  be  recov- 
ered by  due  processe  of  law;  and  upon  refusall  of  any  cause 
in  the  county  court  shall  pay  to  the  party  greived  one  hun- 
dred and  ftifty  pounds  of  tobacco  and  caske,  after  legall  con- 
viction as  aforesaid,  to  be  recovered   by  due   processe  of  law. 


io8 


Provided  ahvaycs  that  this  act  nor  any  clause  therein  shall 
not  extend  to  debarr  any  man  that  is  capable  of  pleading 
and  managcing  his  owne  cause  and  busines  in  any  of  the 
said  generall  or  county  courts,  but  that  he  may  be  permitted 
and  allowed  to  plead  and  manage  his  owne  businesse,  any 
thing  in  this  act  to  the  contrary  notwithstanding."  * 

In  1682  the  act  of  1680  was  repealed,  but  no  provision 
was  made  for  attorneys  appearing  in  the  Courts  without  com- 
pensation. The  law  remained  in  this  condition  until  the 
statutes  were  revised  in  April,  1718,  when  attorneys  were 
allowed  fees  to  be  taxed  in  the  bill  of  costs. 

In  1732  an  act  was  passed  requiring  lavvj-ers  to  be 
licensed  to  practise  and  to  take  an  oath,  as  follows: 

"  You  shall  do  no  falsehood,  nor  consent  to  any  to  be 
done  in  the  court;  and  if  you  know  of  any  to  be  done 
you  shall  give  notice  thereof  to  the  justices  of  the 
court  that  it  may  be  reformed :  You  shall  delay  no 
man  for  lucre  or  malice  or  take  any  unreasonable  fees: 
You  shall  not  wittingly  or  willingly  sue  or  procure  to  be 
sued  any  false  suit,  nor  give  any  aid  nor  consent  to  the 
same,  upon  pain  of  being  disabled  to  practice  as  an  attor- 
ney for  ever.  And  furthermore,  you  shall  use  yourself 
in  the  office  of  an  attorney  within  the  court,  according 
to  your  learning  and   discretion.     So  help  you   God."  f 

This  oath,  it  will  be  noticed,  is  a  copy  of  the  oath  pre- 
scribed by  the  New  Hampshire  and  Massachusetts  statutes  of 
1680  and  1701.     This  act   also  provided   that  the   attorney's 

*  Laws  of  Virginia,  June,  1680,  Act  VI. 
t4  Henning,  361. 


109 

oath  was  to  be  taken  instead  of  the  oath  of  allegiance  and 
supremacy,  but  the  attorneys  in  the  County  Courts  were  also 
required  to  take  and  subscribe  the  English  oath  of  abjuration 
and  to  subscribe  the  test. 

Between  1718  and  1732  there  were  various  acts  regulating 
the  office  of  attorneys  and  imposing  penalties  upon  them  for 
failing  to  appear  when  engaged  to  do  so.  Later  the  act 
requiring  a  license  to  appear  was  repealed,  but  soon  after 
reenacted.  In  1742  an  act  was  passed  prescribing  an  oath 
against  exacting  or  receiving  exorbitant  fees. 

Finally,  in  1748,  an  act  was  passed  providing  for  licensing 
lawyers,  and  prescribing  the  following  oath  : 

"  I,  A.  B.,  do  swear  that  I  will  truly  and  honestly  demean 
myself  in  the  practice  of  an  attorney  according  to  the 
best  of  my  knowledge  and  ability.  —  So  Jielp  me  God."  * 

From  this  time  until  the  Revolution,  numerous  acts  were 
passed  regulating  the  conduct  and  rights  of  lawyers  in  many 
ways,  but  no  new  oath  was  required. 

In  May,  1776,  an  act  was  passed  requiring  every  attorney 
upon  admission  to  practice  to  take  the  following  oath : 

"  I,  A.  B.,  do  solemnly  promise  and  swear,  that  I  will  be 
faithful  and  true  to  the  commonwealth  of  Virginia,  and 
that  I  will  well  and  truly  demean  myself  in  the  office 
of  an  attorney-at-law.     So  help  me  God."  f 

The  present  provision  in  Virginia  as  to  admission  of 
attorneys  provides  that  three  or  more  Judges  of  the  Supreme 
Court  of  Appeals,  voting  together,   may,   under  such   rules 

*  6  Henning,  140. 
tg  Henning,  121. 


no 


and  regulations,  and  upon  such  examination,  both  as  to 
learning  and  character,  as  may  be  prescribed  by  the  said 
Court,  grant  a  license  in  writing  to  practise  law  in  the 
Courts,  and  requires  the  Court  of  Appeals  to  make  and 
promulgate  such  rules  and  regulations.  The  statute  also 
requires  the  attorney  to  produce  before  each  Court  in  which 
he  intends  to  appear  evidence  of  his  being  so  licensed,  and 
to  "  take  an  oath  that  he  will  honestly  demean  himself  in 
the  practice  of  the  law,  and  to  the  best  of  his  ability  execute 
his  office  of  attorney-at-law;  and  also,  when  he  is  licensed  in 
this  state,  take  the  oath  of  fidelity  to  the  commonwealth."  * 


*  Virginia  Code,  1904,  Chapter  154.    See  also  4  Virginia  Law  Register,  326;    13 
Virginia  Law  Journal,  327 ;  Virginia  Code,  1849,  page  635. 


1 1 1 


IN    VERMONT. 

The  first  law  in  regard  to  attorneys  in  Vermont  was  passed 
March  3,  1787,  entitled  "An  act  for  the  appointment  and 
regulating  of  Attornies,  and  pleadings  at  the  bar,"  as  fol- 
lows : 

"BE  it  enacted  by  the  General  Assetnbly  of  the  State  of 
Vermont,  That  the  Supreme  and  County  Courts  in 
this  State  shall  appoint,  and  they  are  hereby  empowered 
to  nominate  and  appoint,  Attornies,  as  there  shall  be 
occasion,  to  plead  at  the  bar;  which  Attornies  shall, 
before  the  Court  appointing  them,  take  the  following 
oath,  viz. : 

"  '  You  swear  by  the  ever-living  God,  that  you  will  do 
no  falsehood,  nor  consent  to  any  to  be  done,  in  the 
Court;  and  if  you  know  of  any  to  be  done  in  the  Court, 
you  shall  give  knowledge  thereof  to  the  Justices  or 
Judges  of  said  Court,  that  the  same  may  be  reformed. 
You  shall  not  wittingly  and  willingly,  or  knowingly, 
promote,  sue,  or  procure  to  be  sued,  any  false  or  unlaw- 
ful suit,  or  give  aid  or  consent  to  the  same  You  shall 
demean  yourself  in  the  office  of  an  Attorney  within  the 
Court,  according  to  your  best  learning  and  discretion, 
and  with  all  good  fidelity,  as  well  to  the  Court,  as  to  the 
client.     So  help  you  God.' 

"  The  administering  and  taking  of  which  oath,  together 
with  the  appointment  of  any  Attorney,  shall  be  regis- 
tered by  the  Clerk  of  the  Court  wherein  he  shall  be 
admitted,  and  shall  be  a  sufficient  evidence  of  his 
admission  as  an  Attorney  at  the  bar,  in  any  Court  in 
this  State. 

"  Provided  ahvays,  That  the  Supreme  Court  of  Judica- 


I  12 


ture  in  this  State,  shall  hereafter  have  the  exclusive  right 
of  appointing  and  admitting  Attornies  to  plead  at  their 
bar;  and  no  Attorney,  who  shall  be  admitted  to  plead 
in  the  County  Courts,  as  aforesaid,  (except  the  several 
State  Attornies)  shall  thereby  be  authorized  or  empow- 
ered to  plead  in  the  Supreme  Court,  without  permission 
or  licence  first  obtained  from  the  Supreme  Court. 

"  And  be  it  further  enacted  by  the  authority  aforesaid, 
That  in  each  county  in  this  State,  there  shall  be  one 
State's  Attorney,  who  shall  prosecute,  manage,  and 
plead,  in  the  county  wherein  he  is  appointed,  in  all 
matters  proper  for,  and  in  behalf  of,  this  State  ;  which 
Attorney  shall  be  appointed  by  the  respective  County 
Courts,  and  shall  have  a  right  to  plead,  in  behalf  of  the 
State,  as  well  in  the  Supreme  as  County  Court,  in  the 
county  where  he  is  appointed  :  and  the  several  Attornies, 
who  shall  be  allowed  and  appointed  as  aforesaid,  shall, 
from  time  to  time,  be  under  the  direction  of  the  Courts 
before  whom  they  plead  ;  and  the  several  Courts  shall 
have  power  to  suspend  or  displace  any  of  their  Attor- 
nies, for  misdemeanors,  or  fine  them  not  exceeding  ten 
pounds,  for  each  offence. 

"  And  that  persons  allozved  as  Attornies  may  be  dnly 
qualified  to  practice. 

"  Be  it  further  enacted  by  the  authority  aforesaid,  That 
no  person  shall  hereafter  be  licenced,  by  either  of  the 
Courts  above  mentioned,  to  practice  the  law  in  this 
State,  without  such  person  applying  shall  have  pre- 
viously studied  at  least  three  years  with  a  licenced 
Attorney  of  this  State,  and,  upon  examination  by  the 
said  Court,  shall  be  found  to  have  a  competent  knowl- 


113 


edge  of  the  laws ;  or  unless  the  person  applying  for 
licence  shall  have  obtained  a  degree  of  Bachelor  of  Arts, 
in  some  University  or  College,  and  have  studied  at  least 
two  years  with  a  licenced  Attorney  of  this  State,  and 
upon  examination  by  the  said  Court,  shall  be  found 
to  have  a  competent  knowledge  of  the  laws  for  that 
purpose."  * 

The  form  of  Attorney's  oath  prescribed  by  the  Act  of  1787 
is  now  prescribed  by  law.  f 


*  Statutes  of  Vermont,  February  and  March,  1787,  page  22. 
Public  Statutes  ofVermont  (1906),  page  1234. 


114 


IN    OTHER   STATES. 

With  the  exception  of  the  States  of  South  Dakota,  Okla- 
homa and  Maine,  which  have  adopted  substantially  the  oath 
of  office  prescribed  in  New  Hampshire,  Connecticut  and 
Vermont,  all  the  States  since  admitted  to  the  Union  except 
two  have  either  adopted  substantially  the  form  of  oath 
prescribed  in  New  York,  or  that  prescribed  by  the  rule  of 
the  Supreme  Court  of  the  United  States.  But  in  Colorado 
the  candidate  for  admission  is  also  required  to  swear  that  he 
has  never  been  disbarred  or  convicted  of  felony,  and  in 
Kentucky  and  Nevada  to  swear  that  he  has  not  fought  a 
duel  nor  sent  or  accepted  a  challenge,  nor  acted  as  second, 
nor  aided  any  person  thus  offending.*  And  in  Minne'sota 
he  is  also  required  to  swear  that  he  will  behave  himself  in 
an  upright  and  courteous  manner  to  the  best  of  his  learning 
and  ability,  f 

The  two  exceptions  are  the  State  of  Idaho,  where  the  oath 
prescribed  is  as  follows  : 

"  I.  To  support  the  constitution  and  laws  ol  the 
United  States  and  of  this  state  ; 

2.  To  maintain  the  respect  due  to  the  courts  of 
justice  and  judicial  officers  ; 

3.  To  counsel  or  maintain  such  actions,  proceedings, 
or  defenses  only  as  appear  to  him  legal  or  just,  except 
the  defense  of  a  person  charged  with  a  public  offense; 

4.  To  employ,  for  the  purpose  of  maintaining  the 
causes  confided    to  him,   such   means  only  as  are  con- 

*  Constitution  of  Kentucky,  Section  228 ;  Constitution  of  Nevada. 
t  Laws  of  Minnesota. 


115 

sistent  with  truth,  and  never  seek  to  mislead  the  judges 
by  an  artifice  or  false  statement  of  fact  or  law ; 

5.  To  maintain  inviolate  the  confidence,  and  at 
every  peril  to  himself,  to  preserve  the  secrets  of  his 
clients ; 

6.  To  abstain  from  all  offensive  personality,  and 
to  advance  no  fact  prejudicial  to  the  honor  or  reputa- 
tion of  a  party  or  witness,  unless  required  by  the  justice 
of  the  cause  with  which  he  is  charged  ; 

7.  Not  to  encourage  either  the  commencement  or 
the  continuance  of  an  action  or  proceeding  from  any 
motive  of  passion  or  interest; 

8.  Never  to  reject  for  any  consideration  personal  to 
himself  the  cause  of  the  defenseless  or  the  oppressed  ;  "  * 

and  the  State  of  Washington,  where  the  oath  prescribed  is 
this  : 

"  1st.  I  do  solemnly  swear  that  I  will  support  the 
Constitution  and  laws  of  the  State  of  Washington. 

2d.  That  I  will  maintain  the  respect  due  to  Courts 
of  Justice  and  Judicial  Officers. 

3d.  That  I  will  counsel  and  maintain  such  actions, 
proceedings  and  defenses  only,  as  appear  to  me  legal 
and  just;  except  the  defense  of  a  person  charged  with  a 
public  offense. 

4th.  To  employ  for  the  purpose  of  maintaining  the 
causes  confided  to  me  such  means  only  as  are  consistent 
with  truth  and  never  to  seek  to  mislead  the  judge  by 
any  artifice  or  false  statements  of  facts  or  law. 

*  Idaho  Code,  1901,  Section  3094. 


ii6 


5th.  That  I  will  maintain  in\'iolate  the  confidence 
and,  at  every  peril  to  myself,  preserve  the  secrets  of  my 
client. 

6th.  That  I  will  abstain  from  all  offensive  person- 
ality and  advance  no  fact  prejudicial  to  the  honor  or 
reputation  of  a  party  or  witness  unless  required  by  the 
justice  of  the  cause  with  which  I  am  charged. 

7th.  That  I  will  never  reject,  from  any  consideration 
personal  to  myself,  the  cause  of  the  defenseless  or 
oppressed.     So  help  me  God."* 

The  laws  of  Oklahoma  and  South  Dakota  also  prescribe 
as  duties  of  the  attorney  the  obligations  of  the  oath  pre- 
scribed by  the  oath  in  Idaho  quoted  above,  f 

This  extended  and  necessarily  repetitious  compilation  of 
the  colonial,  provincial  and  early  State  statutes  of  the  orig- 
inal States  of  the  Union  and  summary  of  the  oaths  of  office 
in  the  other  states  shows  how  the  lawyer's  office  has  been 
established  and  what  it  now  is  in  the  United  States  better 
than  any  mere  statement,  however  carefully  made,  could 
show.  It  also  shows  how  the  lawyer's  oath  has  been  impaired 
in  most  of  the  States  and  in  the  Federal  Courts,  so  that  it 
has  ceased  to  be  a  distinctive  oath  of  office. 

This  ought  to  be  reformed.  The  oath  ought  to  set  forth 
something  of  the  duties  and  obligations  of  the  lawyer's 
office.  I  believe  this  can  be  best  done  by  restoring  where 
it  has  been  abandoned,  and  by  putting  in  force  where  it  has 
never   existed,  substantially  the  form   of  the  oath  of   office 

*  Laws  of  Washington. 

t  Statutes  of  Oklahoma,  1903,  Section  226 ;  Statutes  of  South  Dakota,  Section  734. 


117 

which  was  used  in  the  New  England  States  in  the  colonial 
times.  This  form  breathes  the  true  spirit  of  the  common 
law.  It  embodies  those  duties  which  were  really  embodied 
in  and  understood  to  be  imposed  by  the  oath  of  a  sergeant 
or  a  pleader  under  the  ancient  English  law.  This  oath 
smells  of  the  common  law  as  a  lawyer's  oath  of  office  under 
the  common  law  should.  No  oath  framed  upon  the  obli- 
gations of  the  office  as  understood  under  the  civil  law  is 
appropriate  to  the  obligations  imposed  by  the  office  under 
the  common  law. 

Admission  to  the  Bar  should,  I  think,  also  be  by  the  high- 
est Court  in  the  State  and  in  open  court.  The  oath  of 
office  should  be  administered  by  the  Chief  Justice,  or  some 
Justice  of  that  Court,  and  he  should  then  explain  to  the 
candidates  the  significance  of  the  oath,  and  charge  them  as 
to  the  professional  duties  which  it  imposes,  according  to  the 
ancient  method  in  which  sergeants-at-law  were  instructed 
upon  receiving  that  degree. 

The  administration  of  the  oath  and  the  admission  to  the 
office  of  an  attorney  should  be  made  as  impressive  and  as 
instructive  as  possible,  to  the  end  that  those  who  are 
admitted  to  the  lawyer's  office  may  understand  its  powers, 
responsibilities  and  duties,  and  may  be  thereby  made  to 
know  and  to  feel  the  importance  and  the  dignity  of  the  office 
which  they  take  upon  themselves.  In  most  States  nothing 
of  this  kind  is  done  and  in  none  of  the  States,  so  far  as  I 
am  aware,  is  there  any  instruction  by  the  Court  or  any  per- 
son appointed  by  the  Court,  at  the  time  the  oath  of  office  is 
administered,  as  to  what  it  means,  and  what  the  duties  of  the 
office  are. 

In  the  Federal   Courts  this  is  not  so  necessary,  because  no 


Ii8 


persons  are  admitted  in  the  Supreme  Court  who  have  not 
been  for  three  years  before  admitted  to  practise  as  attorneys 
or  counsellors  in  the  Supreine  Courts  of  the  States  to  which 
they  respectively  belong.* 

In  the  other  Federal  Courts  it  is  very  rare,  I  think, 
that  any  person  is  admitted  to  practice  who  has  not  been 
previously  admitted  in  a  State  Court. 

The  following  as  to  the  lawyer's  oath  in  England,  France 
and  Germany  shows  what  the  oath  in  those  countries  now  is. 


*  Rules  Supreme  Court,  U.S.  R.,  210,  472. 


119 


The  Lawyer's  Oath  in  England. 
The    order    of   serjeants-at-law   has  ceased    to    exist,  and 
with  it  has  gone  the  ancient  oath  of  office  of  a  sergeant-at- 
law.     Attorneys  and  soHcitors  now  take  an  oath  prescribed 
by  statute  as  follows  : 

"  I  ,  do  swear  (or  solemnly 

affirm,  as  the  case  may  be)  that  I  will  truly  and  honestly 
demean  myself  in  the  practice  of  an  attorney  (or  solici- 
tor, as  the  case  may  be)  according  to  the  best  of  my 
knowledge  and  ability,  so  help  me  God."  * 

Barristers  are  not  required  to  take  any  oath  or  to  sign  any 
roll,  but  assume  practice  as  soon  as  they  are  admitted  by 
one  of  the  Inns  of  Court. f 

The  Lawyer's  Oath  in  France. 
In  1803  the  law  of  the  French  Republic  concerning  the 
organization  of  the  law  profession  provided  that  the  "  candi- 
date is  expected  to  offer  before  the  Court  to  which  he  is 
admitted,  the  oath  (of  fidelity)  exacted  of  all  the  officials  of 
the  state,  and  in  addition  to  swear  that  he  will  perform  his 
duties  with  exactness  and  probity. "J 

In  1804,  by  the  law  concerning  law  schools,  it  was  pro- 
vided that 

"  Attornies    and    barristers    (Les  avocats   et  avoues) 
are  expected  at  the  publication  of  this  present  law  and, 

*  6  and  7  Vict.     Chapter  73,  Sections  15,  16,  17,  18,  19. 

t  Marchant,  Barristers-at-law,  pages  12,  31,  and  32  Vict.     Chapter  72  (1868). 
X  Bulletin  des  Lois  de  la  r^publique  fran^aise.     3"  s6rie,  vol.  7.     No.  258,  Law,  No. 
2440,  pages  593-603,  Section  47.     Lois  of  March  16,  1803  =  25  VentOse,  year  XI. 


I20 


in  the  future,  before  entering  upon  their  functions,  to 
offer  oath  neither  to  utter  nor  to  pubHsh,  as  defending 
lawyers  or  counsellors,  anything  contrary  to  the  laws, 
to  the  regulations,  to  good  manners  (morals),  to  the 
stability  of  the  state  and  the  public  peace ;  and  never 
to  disregard  the  respect  due  to  the  courts  and  the 
public  authorities."  * 

In  1810,  in  the  law  concerning  lawyers  and  advocates,  it 
was  provided  that 

"The  reception  (of  the  candidate)  shall  take  place 
at  a  public  meeting,  upon  presentation  of  an  old  lawyer 
(ancien  avocat)  and  the  consent  of  the  Attorney 
General.  The  candidate  shall  then  offer  an  oath  as 
follows : 

"'I  swear  obedience  to  the  constitutions  of  the 
Empire  and  fidelity  to  the  Emperor;  neither  to  utter  or 
publish  anything  contrary  to  the  laws,  to  the  regula- 
tions, to  good  manners  (morals),  to  the  stability  of  the 
state  and  the  public  peace ;  and  never  to  disregard  the 
respect  due  to  the  courts  and  the  public  authorities; 
not  at  any  time  to  take  or  defend  a  case  which,  in  my 
heart  and  conscience,  I  do  not  believe  to  be  right.'  "  f 

This  oath  remains  practically  unchanged,  except  that  upon 
the  Restoration  and  during  the  Second  Empire  changes  were 
made  in  the  political  part  of  the  oath,  and  that  the   Third 

*  Ibidem,  Volume  9,  No.  356,  pages  701-709.  Laws  of  year  XII.  (22  Ventose  = 
March  13,  1804),  pages  706,  707. 

t  Bulletin  des  Lois  de  1'  empire  frangaise.  4"  s6rie.  Vol.  13  (Laws  of  1810).  No. 
332  Laws  of  December  14,  1810  (pages  569-579).     Sect.  14,  page  572. 


121 


Republic  has  omitted  the  poHtical  oath  and  the  professional 
oath  alone  is  now  required.  * 

The  Lawyer's  Oath  in  Germany. 
The  provision  as  to  the  lawyer's  oath  in  Germany  is  that 
"  Immediately  upon  admission,  the  lawyer  offers  at  a  public 
session  of  the  Court,  to  which  he  is  admitted,  the  following 
oath : 

"  I  swear  by  God  almighty  and  all-knowing,  to  per- 
form the  duties  of  a  lawyer  conscientiously.  So  help 
me  God."  f 


*  Bulletin  des  Lois  du  Royaume  de  France,  y  s6rie.  Vol.  15  (Laws  of  1822), 
no.  566,  pages  513-520;  especially  ^^  38  (pages  518,  519).  Bulletin  des  Lois  de  la 
Republique  fran9aise.  ic  s6rie.  Vol.  9  (Laws  of  1852),  pages  929-930;  especially 
§  3  (ps^ge  930).  Bulletin  des  Lois  de  TEmpire  fran9aise.  ii'-  s6rie.  Vol.  35  (Law  of 
March  10,  1870),  pages  357,  358. 

t  Reichs-Gesetzblatt,  1878.    No.  23.    Law,  No.  1258,  entitled  Rcchtsanwaltordnung. 


BIBLIOGRAPHY. 


The  following  is  a  partial   list  of  authorities  consulted   in 
the  preparation  of  this  book: 

PAGE 

Abbreviatio  Placitorum  in  Domo  Capitulari  Westm.  asservat.,  295  b         .  39 

Acts  of  Assembly,  passed  in    the    Province  of   Maryland,   from   1692  to 

1715.     Edition  of  1723,  page  S3 52 

Acts  and  Laws  of  His  Majesty's  English  Colony  of  Connecticut  in  New- 
England  in  America.      Edition  of  1750,  page  180  .         .         .         .  42 

Acts  and  Laws  of  His  Majesty's   Province  of  New-Hampshire.     In  New 

England.     Edition  of  1 771.     Chap.  XXXVH.,  page  50  .         .  71 

An  Act  for  the  security  of  her  Majesty's  person  and  government,  and  of 

the  succession  to  the  crown  of  Great  Britain  in  the  protestant  line,  44 

Attorneys   and   their   Admission   to  the    Bar  in    Massachusetts.     H.  R. 

Bailey,  page  13       .........         .  60 

Bell,  C.  The  Supreme  Court  of  the  States  and  Provinces  of  North  Amer- 
ica.    New  York.     1893.     Vol.  L,  Series  2,  page  66        .         .         .  76 

Body  of  Liberties,  of  Mass.,  Whitmore  Reprint,  page  39  .         .         .         .  56 

Book  of  Oaths,  The,  and  the  severall  forms,  both   antient   and   modern. 

Editions  of  1649  and  1689     ........  29 

Branch  f/ rt/. ,  70  N.J.  Law 77 

Bulletin  des  Lois  de  la  republique  fran9aise,  3*  serie.  Vol.  7,  No.  258, 
Law,  No.  2440,  pages  593-603,  Sect.  47.  Lois  of  March  16, 
1803  =  25  Ventose,  year  XL  .  .         .         .         .         .  .  119 

Ibidem,  Vol.  9,  No.  356,  pages  701-709.     Laws  of  year  XIL  (22  Ventose 

=  March  13,  1804),  pages  706,  707 120 

Bulletin  des  Lois  du  Royaume  de  France,  "]"  serie.  Vol.  13  (Laws  of 
1822),  No.  566,  pages  513-520,  especially  Sect.  38  (pages  518, 
519).  Bulletin  des  Lois  de  la  republique  franfaise,  lo''  sdrie.  Vol. 
9  (Laws  of  1852),  pages  929,  930,  especially  Sect.  3  (page  930;. 
Bulletin  des  Lois  de  I'Empire  franfaise,  il'^'  serie.  Vol.  35  (Law  of 
March  10,  1870),  pages  357,  358 121 

(123) 


124 


Bulletin  iles  Lois  de  Tempire  frain;aise,  4*'  serie,  Vol.  13  (Laws  of  1810), 
No.  332;  Laws  of  December  14,  iSio  (pages  569-579),  Sect.  14, 
page  572 120 


Edition   of 


Capitularies  of  Charlemagne       ...... 

Compilation  of  the   Laws  of  Georgia,  1S00-1810,  Clayton. 

1813,  page  331 

Coke's  Second  Institute  (Ed.  1817),  pages  212-214  .         .         .         . 

Colonial  Laws  of  New  York,  from  1664  to  the  Revolution,  Edition  of  1894, 

Vol.  L,  page  351 

Collection,  A,  of  the  Statutes  of  the  Parliament  of  England  in  force  in  the 

State  of  North  Carolina.     Published  according  to  a  Resolve  of  the 

General  Assembly.     By  Francois  Xavier   .Martin,  Esq.,  Counsellor 

at  law,  1792,  pages  10,  356    . 
Connecticut  Colony  Records,  Vol.  5,  page  48 
Constitution  of  Kentucky,  Sect.  228 
Constitution  of  Nevada 

Danish  Laws,  The :   Or  the  Code  of  Christian  the  Fifth,  Faithfully  trans- 
lated for  the  Use  of  the  English  Inhabitants  of  the  Danish  Settle- 
ments in  America.     London,  1756,  pages  58,  59    . 
Digest  of  the  Laws  of  Georgia,  Edition  of  1801,  page  406 
Digest  of  the  Laws  of  Georgia,  Edition  of  1802,  page  41 
Digest  of  the  English  Statutes  in  force  in  the  State  of  Georgia.     Schley's 
Edition  of  1826,  page  353      ........ 


13 

II 

78 


25 
49 


48 


English  Citations : 

3  Edw.  I.,  St.  I.  Westm.,  c.  29 

6  Edw.  I.,  St.  Gloucester,  c.  8  . 

12  Edw.  2,  St.  I.,  c.  I. 

13  Edw.  I.,  St.  I.,  Westminster  2,  c.  10 
Statute  of  Carlisle,  15  Edw.  2,  st.  I. 

4  Henry  4,  c.  18 
4  Henry  IV.,  Cap.  18,  1402 

20  Henry  3,  St.  Merton,  c.  10    . 

7  Richard  2,  c.  14    . 
6  and  7  Victoria,  Chap.  73,  Sects.  15,  16 

32  Victoria,  Chap.  72  (1868)     . 
English  Statutes  at  Large,  Vol.  4,  page  654 
Ex  parte  Garland,  4  Wallace,  333   . 


I7> 


18,  19 


4' 
41 
41 
41 
41 
41 
27 

41 
41 
119 
119 


125 


PAGE 


Fortescue,   De  laudibus  legum  Angliae     .     .     .     With  the  notes  of  Mr. 

Seidell.      1 74 1.     Pages  113,  115,  ii6 34 

Form  of  Writ  to  call  a  person  to  lie  a  Barrister  in  Massachusetts,  pre- 
scribed in  1783       ..........  68 

Fournier,  Paul,  Les  Officialites  au  moyen  age,  Etude  sur  I'organisation,  la 
competence  et  la  procedure  des  tribunaux  ecclesiastiques  ordinaires 
en  France,  de  11 80  a  1328,  Paris  1880,  page  21,  lines  1-6      .         .  20 

Freeman's  Growth  of  the  English  Constitution,  Chap.  II.  .         ...  10 

General  Statutes  of  Connecticut,  1902,  Sect.  4795 43 

General  Statutes  of  Massachusetts  (i860),  Chap.  121,  Sects.  30,  31  .  64 

General  Statutes  of  New  Jersey,  1896,  Vol.  2,  pages  2330-2534         .         .  77 

Grandeur  of  the  Law,  1684,  Phillips. 
Grandeur  of  the  Law:   or,  the   Legal  Peers  of  England.     Edward  Foss. 

London,   1843. 
Grants  and  Concessions,  and  Original  Constitutions  of   the  Province  of 

New  Jersey,  etc.,  page  223     .  .......  74 

Grimm,  Deutsches  Worterbuch,  Vol.  8  (1893),  column  424       ...  39 

Hale's  History  of  the  Common  Law  of  England,  Chap.  6        .         .         .  13 
Handbook  of  London,  Peter  Cunningham,  Vol.  II.,  p.  391. 

Ilarleian  Mss.  (298,  fo.  56) 38 

Hening,  Statutes  at  Large  of  Virginia.      1619-1792.     Vol.  4,  page  361 ; 

6,  page  140;  9,  page  121 108,  109 

Herbert,  Antiquities  of  the  Inns  of  Court  and  Chancery    .     .    .     London, 

1804,  page  358  ^/ j^(7 34 

History  of  the  French  Bar,  Ancient  and  Modern,  by  Robert  Jones,  pages 

100,   103 14 

Heyne,  Moriz,  Deutsches  Worterbuch,  Vol.  3  (1895),  column  49     .         .  38 

Hoar  vs.  Wood,  3  Metcalf  (Mass.)  197 9 

Hutchinson  vs.  Stephens,  i  Keen's  Reports,  659  at  668     ....  8 

Idaho  Code,  1901,  Sect.  3094 II4>  "5 

In  re  Jewitt,  ■t^T)  Bevan,  559       .........  8 

In  re  Thomas,  36  Fed.  Rep.  243 7 

Introduction    to    the    Red    Book  of   the    Exchequer,  Part   I.,   Edited  by 

Hubert  Hall  of  the  Public  Record  Office,  1896      .         .         .         .  28 


126 


Labbe,  Philippe,  and  (labriel  Crossart,  "  Sacrorum  conciliorum  nova  et 

amplissima  coUectio     .     .     .     editio    novissima  a     .     .     .     patre 

Mansi    edita.     Florentiae,     1759"     Reproduction    in    fac-simile. 

Paris,   Welter,    1901-     .     Vol.  23,  columns  216,    240,    241,    411, 

412;   Vol.  24,  columns  216,  1149  .......  20 

Laws  of  the  State  of  Delaware,  Edition  of  1797,  Vol.  I.,  Chap.  XIII., 

Sect.  I.  1704;  Chap.  LIV.,  Sects.  26,  27,  28,  1721  .  .  .  45,46 
Laws  of  the  State  of  Delaware,  Revised  Code,  1893,  pages  234,  698  .  47 

Laws  of  Maryland,  The,  Edition  of  i8ii,Vol.  L,  Chap.  XLVIIL,  Sects. 

12,  13 54 

Laws  and  Resolves  of  Massachusetts,  1785,  Chap.  23        ...         .  62 

Laws  of  Minnesota    ...........  114 

Laws  of  New  Hampshire,  Province   Period,    1679-1702,  Vol.    I.,  pages 

105,  123 69,  70 

Lawsof  New  Jersey  r  1800),  pages  355,  377     ......  75 

Laws  of  New  York,  Edition  of  1789,  Vol.  2,  page  64        .         .         .         •79.  84 
Laws  of  the  State  of  North  Carolina,  1715-1790,  Chap.  14       .         .         .  89 

Laws  of  Pennsylvania,  Edition  of  1797,  Vol.  I.,  page  185  ...  91 

Laws  of  Pennsylvania,  Edition  of  1728,  pages  327,  336      ....  93 

Laws  of  Virginia,  March,  1642-3,  Act  LXL ;  November,  1645,  ^^^^  VIL; 

March,  1645-6,  Act  VIII 102,  103 

Laws  of   Virginia,    November,   1647,  Act  XVI.;    December,    1656,    Act 

VI. ;  March,  1657-8,  Act  CXIL;  June,  1680,  Act  51     .  104,  105,  108 

Laws  of  Washington         .         .  .  .         .  .  .         .  .         .  116 

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PAGE 

6 
12,  13 


"Oaths:    their    Origin,  Nature,  and    History,"    by    James    Endell   Tyler, 

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Opinion  of  Chief  Justice  Shaw  in  Lewis  vs.  Sumner,  54  Mass.  271-273      .     64-66 
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93 
56 
58-61 
89 
90 

95 
98 
64 

72,  73 

"3 

34.41 


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95 


18,  19 


26 
64 

90 

47 
63 
94 


128 


Rules  March  Term,  iSio,  6  Mass.  Rept.  382     . 
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4,  page  668 

Splain's  Petition,  123  Penn.  St.  527  .... 

Statutes  of  Oklahoma,  1903,  Sect.  226     .... 
Statutes  of  South  Dakota,  .Sect.  734  .... 

Statutes  of  Vermont,  February  and  March,  1787,  page  22 
Stjernhook,  de  Jur.  Goth  I.  i,  c.  6    . 
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Viner's  A  General  Abridgment  (1746),  Title  Pauper,  etc. 
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Virginia  Law  Journal,  Vol.  13,  327    ..... 
Virginia  Law  Register,  4,  326  ...... 


Vol 


I'AGK 

64 

96 

96 

118 


lOI 

5 
116 
116 

"3 
40 


19 
no 
no 
no 


Washburn,  E.,  Sketches  of  the  Judicial  History  of  Massachusetts,  pages 

50,  52,  53 56,  57 

Whitelocke's  Memorials    .........        34,  35-37 

Winthrop's  History,  Vol.  2,  page  36         ......         .  56 


INDEX. 


Abbreviatio  placitorum  in  Domo  Capitulari  Westm.  asservat.,  295  b.,  quoted,  39. 

Advocate,  German  equivalent  for,  38  (note).* 

American  colonies  of  England  and  their  conception  of  the  lawyer's  office,  38-41. 

Apprentices  in  early  English  law,  32,  ;^;^. 

Attorney  and  client,  7 ;  as  defined  by  Lord  Whitelocke,  36,  37 ;  in  Danish  laws  of 
Christian  V.,  24,  25;  in  early  colonial  statutes,  40;  in  early  English  law, 
36,  40,41;  in  early  French  law,  18;  in  Gothic  law,  39,  40;  in  State  of 
Massachusetts,  64-66. 

Attorney  and  the  Court,  35,  36,  64-66. 

Attorney-General,  oath  of,  31. 

Attorney,  appearance  by,  first  permitted,  41;  legislation  in  colonies  and  provinces 
of  England  in  North  America  as  to,  38. 

Attorneys,  in  Colonial  Massachusetts,  56-58 ;  in  the  Office  of  Pleas  and  their 
oath,  28. 

Attorneys:  admission  by  the  courts,  41;  special  regulations  as  to,  in  Delaware, 
44-47;  Maryland,  52-54;  Massachusetts,  60,  61;  New  Jersey,  77 ;  North 
Carolina,  88;  Pennsylvania,  93;  Rhode  Island,  95;  South  Carolina,  98- 
loi ;  Virginia,  102-104.  —  Affidavit  in  Delaware,  47.  —  Conduct  regulated 
in  Maryland,  52,  54,  55. —  Fees,  act  of  Virginia  against  mercenary  attorneys, 
103,  104,  109;  in  colonial  Maryland,  52;  in  early  English  law,  26,  28;  in 
early  French  law,  14,  16,  17;  in  New  Hampshire  province,  71;  in  North 
Carolina  province,  86,  87;  regulated  in  province  of  Massachusetts  Bay, 
58,  60,  61.  —  Oath,  earhest  English  record  of,  27,  28;  first  complete  form 
in  English  colonies  of  America,  69;  form  from  "  Book  of  Oaths,"  30; 
in  Massachusetts,  58,  59,  60,  61-63;  why  required?  3.  —  Oath  and 
duties,  as  prescribed  by  Frederic  II.,  19;  in  Danish  laws  of  Christian  V., 
24,  25;  in  early  Enghsh  law,  10,  23,  24,  27,  28;  in  early  French  law,  14, 
16,  20-23.  —  Office,  as  viewed  by  United  States  Supreme  Court,  5. 
See  also  articles,  barrister,  lawyer,  serjeant-at-law,  names  of  states  and 
of  countries. 

Barrister:  in  early  English  law,  32,33;  in  France,  119,  120;   in  Massachusetts, 
66-68;   in  modern  English  law,  40. 
(129) 


130 

"  Body  of  Liberties  "  (1641),  56. 
"  Book  of  Oaths,"  29-32. 

Capitularies  of  Charlemagne  on  the  legal  profession,  13,  14. 

Chateau  Gontier,  reform  canons  of  council  of,  on  oath  and  duties  of  advocates,  21, 

22. 
Coke,  Sir  Edward,  quoted,  10,  11. 
Colonial  laws  on  oath  and  duties  of  lawyers,  40,  42,  43,  44,  48,  52,  56-60,  70,  71, 

74-76,  78,  86-88,  91-93,  94,  97,  98,  102-109. 
Colorado,  attorney's  oath  in,  1 14. 
Connecticut,  lawyer's  office  and  oath  in,  42,  43. 
"  Conteur,"  countor,  40. 

Danish  laws  of  Christian  V.  on  the  lawyer's  oath,  24,  25. 

Delaware:    affidavit    of  attorney-at-law,   47;    colonial  law  on  admission  and  oath 

of  lawyers,  44-46;  present  law,  46. 
Dudley,  President  Joseph,  mentioned,  69. 

Edward  I.  and  the  legal  profession,  10. 

England :  apprentices  in  early  law  of,  32,  33 ;  attorney  and  court  in  same, 
38,  40;  attorney's  oath  and  duties  as  prescribed  in  same,  14,  15,  23,  24, 
27,  28;  attorneys'  fees  determined  in  same,  26,  28;  barristers  in  same, 
33,40;  earliest  authentic  forms  of  lawyer's  oath,  25-28;  lawyer's  oath  in 
medieval,  15,  23,  24;   in  modern,  1 19. 

English  bar,  establishment  of  the  order  of  the,  9. 

English  colonies  in  North  America  and  legislation  as  to  attorneys,  38. 

Fortescue,  Sir  John,  on  serjeants-at-law,  32—34. 

France:    attorneys'    fees    in    medieval,    14,    16,    17;  attorneys'  oath  and  duties 

according  to  early  law  of,  14,  16,  20-23;  barristers  in,  119,  120;   oath  in 

modern,  119,  120;  oaths  decreed  at  councils  of  Chateau  Gontier,  21,  22; 

and    of  Rouen,   20;   at  synods  of  Langeais,  22,   23;    and  of  Tours,    22; 

official  character  of  lawyers  early  recognized,  18. 
Francis  I.,  edict  of,  recognizing  character  and  enforcing  duties  of  lawyers,  18,  19. 
Frederic  II.  prescribes  oath  of  advocates,  19,  20. 

Garland  case  and  the  United  States  Supreme  Court,  4,  5. 

Georgia,  lawyer's  office  and  oath  in,  48-51. 

Germany,  lawyer's  oath  in,  121. 

Gothic  law,  attorney  and  client  in,  39,  40. 

Grand  Coutumier  de  Normandie  on  the  duties  of  lawyers,  13. 


131 

Idaho,  attorney's  oath  in,  114. 

Juhel  de  Mayenne,  archbishop,  21,  22. 

Kentucky,  attorney's  oath  in,  114. 

King's  council,  oath  of,  30. 

King's  serjeant-at-law,  25;  oath  of,  11,  25,  26. 

Langdale,  Lord,  on  the  duty  of  lawyers  and  their  administration  of  justice,  8. 

Langeais,  synod  of,  ordains  concerning  pleaders'  or  advocates'  oath,  22,  23. 

Lawyer  and  client;  see  attorney  and  client. 

Lawyers :  conduct  regulated  by  Statute,  Primer  Westminster,  10.  —  Duties  and 
responsibilities,  in  general,  7;  in  early  English  law,  12;  in  early  French 
law,  13,  14;  in  Norman  law,  13;  similar  in  Europe  in  the  Middle  Ages 
and  in  Roman  Empire,  19;  their  place  in  the  modern  oath,  116,  117; 
under  ordinance  of  Francis  L,  18,  19;  of  Philip  the  Bold,  16,  17.  —  Oath,  a 
condensed  code  of  legal  ethics,  9;  earliest  English  record  of,  25-28; 
importance  of  uniformity  of,  9,  116,  117;  origin  and  content  of,  9,  10; 
significance  of,  3,  4.  —  Oath  and  office  in  American  colonies  of  England, 
38-41 ;  Colorado,  114;  Connecticut,  42,  43;  Delaware,  44-47;  Denmark, 
24,  25;  England,  15,  23,  24,  119;  France,  14,  15,  19-23,  119,  120; 
Georgia,  48-51;  Germany,  121 ;  Idaho,  114;  Kentucky,  114;  Maine,  114; 
Massachusetts,  56-69;  Minnesota,  114;  Nevada,  114;  New  Hampshire, 
69-71 ;  New  Jersey,  72-77;  New  York,  78-85;  North  Carolina,  86-90; 
Oklahoma,  114,  116;  Pennsylvania,  91-93;  Rhode  Island,  94-96;  South 
Carolina,  97-101 ;  South  Dakota,  114,  116;  Vermont,  111-113;  Virginia, 
102-U0;  Washington,  115,  116.  —  Office,  tenure  of,  4.  — Official  char- 
acter and  duties,  4,  7,  18,  19.  —  Profession,  its  age,  9,  10;  recognition  of,  10. 
See  also  attorney,  barrister,  serjeant-at-law. 

Maine,  attorney's  oath  in,  114. 

Mansi's  Concilia,  quoted,  20-24. 

Marlebridge,  statute  of,  35. 

Maryland:  admission  of  attorneys,  52,  53;  their  fees  and  conduct  regulated,  52, 
54,  55  ;   their  office  and  oath,  52-55. 

Massachusetts  province:  attorneys-at-law,  56-68;  attorneys'  fees  regulated,  58, 
60,  61 ;  their  oath,  58,  59,  60;  barristers,  66-68;  first  regulation  as  to 
attorneys,  57;  limitations  of,  and  later  regulations  concerning,  pleading, 
57,  58;  statute  with  regard  to  admission  of  attorneys-at-law,  60.  —  .State: 
admission  of  attorneys,  61,  62,  69;  attorney,  client  and  court,  64-66; 
attorney's  oath,  61-63;   barristers,  66-68;    disl)arment  of  attorneys,  63. 

Matthew  of  Paris,  quoted,  15. 


132 

"  Mercenary  attorneys,"  acts  against,  in  Virginia,  103,  104,  109, 

Merton,  statute  of,  41. 

Miller,  Justice,  on  the  lawyer's  office,  6. 

Minnesota,  attorney's  oath  in,  1 14. 

"  Mirror  of  Justices,"  11-13,  36. 

Nevada,  attorney's  oath  in,  114. 

New  Hampshire:  attorneys'  oath  in  colony  and  State  of,  70,  71-73;   their  fees  in 

colonial,  71. 
New  Jersey :  admission  of  attorneys,  77;   their  oath  of  allegiance   and   of  office, 

75,  76;    degree    of    serjeant-at-law,    75,    76;    disbarment    of    attorneys, 

76,  77;    first  reference   to  attorneys,    74;    statutory  provision  as  to  their 
conduct,  76,  77. 

New  York:  attorneys'  oath  and  office,  81,  84,  85;  their  disbarment,  81,  83;  first 
provincial  legislation  as  to  attorneys,  78;  State  regulation  as  to  their 
admission,  79-84. 

Norman  law  and  English  law,  13,  40. 

North  Carolina:  English  provincial  statute  in  force  as  to  lawyers,  86-88;  disbar- 
ment and  suspension  of  attorneys,  90;  jurisdiction  of  courts,  etc.,  as  to 
attorneys,  89 ;  their  oath,  89,  90;  State  legislation  as  to  their  admission, 
88-90. 

Oklahoma,  attorney's  oath  in,  1 14,  1 16. 

Otto,  Cardinal  and  legate  of  Pope  Gregory  IX.,  15. 

Paris,  Parliament  of,  regulates  attorneys'  office,  14. 

Paxson,  Chief  Justice,  on  lawyers'  office,  6. 

Pennsylvania:  attorneys'  oath  of  office,  92;  their  disbarment,  92,  93;  first  pro- 
vision of  law  as  to  attorneys,  91  ;  present  oath  of  admission,  93. 

Philip  the  Bold,  ordinance  of,  concerning  functions  and  fees  of  attorneys,  16. 

Philippe  de  Valois,  ordinance  of,  14. 

Pleaders,  9,  10;  "  Mirror  of  Justices  "  on  duties  of,  12,  13;  oath  of,  as  decreed  by 
synod  of  Langeais,  22,  23;  prior  to  the  Xorman  Conquest,  40. 

Pleading,  limitations  of,  in  colonial  Massachusetts,  57,  58. 

Primer  Westminster,  statute  of,  41  ;  regulates  conduct  of  lawyers  10,  86,  97. 

Profession  of  the  law,  its  age  and  recognition,  9,  10. 

Province  of  Massachusetts  Bay;  see  Massachusetts  colony. 

Red  Book  of  the  Exchequer  preserves  earliest  authentic  record  of  an  attorney's 
oath,  27,  28. 

\ 


133 

Rhode  Island  province:  attorneys'  oath,  94;  first  act  as  to  attorneys,  94. —  State: 
admission  of  attorneys;  their  oath,  96. 

Right  of  parties  to  appear  by  attorneys  foreign  to  ancient  English  common  law, 
38;  right  expressly  given  in  early  colonial  statutes,  40;   first  permitted,  41. 

Robert  of  Winchelsea's  statiila  et  ordinationes  prescribing  form  of  oath  of  advo- 
cates and  procurators,  23,  24. 

Roll  of  oaths  of  the  reign  of  Queen  Elizabeth,  quoted,  25,  26. 

Roman  law  and  the  attorney,  19. 

Rouen,  council  of,  decrees  oath  and  duties  of  advocates,  20. 

St.  Paul's,  London,  council  of,  on  oath  of  advocates,  14,  15. 

Serjeant-at-law,  9,  10,  25  ;    degree  of,   in    New  Jersey,  75,  76,  and  in  colonial 

North  Carolina,  %Q;   in  Chaucer,  34;   in  early  English  law,  32,  34;    Lord 

Commissioner   Whitelocke  on    character  of   office  and  duties    of,  35-37; 

oath  of,  10,  II,  26. 
Serjeant  Marshall,  quoted,  38. 

Shaw,  Chief  Justice,  on  relation  of  attorney  to  court  and  to  client,  64-66. 
Solicitor,  the  Modern  English,  40. 
Solicitor  General,  oath  of,  31. 
South    Carolina   province:    admission    of    attorneys    provided    for,    98:   English 

statutes  in  force  as  to  lawyers,  97.  —  State :   regulates  admission  of  attor- 

neys-at-law,  99-101  ;  oath  of  attorney  in,  loi. 
South  Dakota,  attorney's  oath  in,  114,  116. 
Stoughton,  Hon.  William,  59,  60. 

Tours,  synod  of,  concerning  advocates,  22. 

Uniformity  of  lawyer's  oath  and  its  importance,  9,  1 16,  1 1 7. 

United  States  Supreme  Court,  and  the  decision  in  the  case  of  ex  parte  Garland, 
4;  view  of,  on  office  of  attorney,  5. 

Vermont,  attorney's  oath  in,  iii,  113;  first  law  in  regard  to  attorneys,  HI. 

Virginia  province:  act  against  exacting  or  receiving  exorbitant  fees,  109;  acts 
providing  for  admission  of  attorneys,  102,  104;  and  for  the  licensing  of 
lawyers,  106-109;  oaths  of  admission,  105,  108,  109.  —  State:  acts  as  to 
"mercenary  attorneys,"  103,  104;  oath  of  admission,  109,  no. 

Washington,  attorney's  oath  in,  115,  116. 

Whitelocke,  Lord  Commissioner  Sir  Bulstrode,  on  character  of  office  and  duties 
of  serjeants-at-law,  35-37. 


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